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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


THE 


POLICE  POWER 


PUBLIC    POLICY    AND 
CONSTITUTIOxNAL  EIGHTS 


BY 


ERNST    FREUND 

PROFESSOR    OF    JCRISPRUDEXCE    AND    PUBLIC    LAW    IN    THE 
CXIVEESITV    OF    CHICAGO. 


CHICAGO 

CALLAGHAN  &  COMPAXY 

1904 


Copyright  1904 

BY 

KHNST    FHFX'ND 


Wf4 


.  »   iTmi,    T  Mi    00^ 

C(t 


PREFACE 


The  term  police  power,  while  in  constant  use  and  indis- 
pensable in  the  vocabulary  of  American  constitutional  law, 
has  remained  without  authoritative  or  generally  accepted 
definition.  It  is  therefore  proper  to  state  at  the  outset,  that  the 
term  will  be  employed  in  the  following  pages  as  meaning  the 
power  of  promoting  the  public  welfare  by  restraining  and 
regulating  the  use  of  liberty  and  property.  Under  this  defini- 
tion constitutional  questions  regarding  civil  and  criminal  jus- 
tice, taxation,  and  public  improvements  and  services,  are  out- 
side of  the  scope  of  this  treatise,  the  plan  of  which  also 
excludes  the  administrative  law  of  the  police  power,  i.  e.,  the 
common  law  and  constitutional  principles  regarding  the  exe- 
cution and  enforcement  of  police  legislation,  and  the  remedies 
against  unlawful  official  action  in  the  pretended  exercise  of  the 
police  power. 

The  first  part  of  the  treatise  develops  the  idea  of  the  police 
power  by  assigning  to  it  its  place  among  governmental  powers 
(chap.  I)  ;  and  by  discussing  its  various  methods  of  operation 
(chap.  II)  ;  and  a  chapter  is  given  to  a  summary  of  the  relation 
of  the  federal  government  to  the  police  power  (chap.  III). 

The  main  division  of  the  treatise  is  dictated  by  the  considera- 
tion that  certain  rights  yield  to  the  police  power,  while  it 
respects  and  accommodates  itself  to  others.  The  part  entitled 
the  Public  "Welfare  defines  the  conditions  and  interests  which 
call  for  restraint  or  regulation.  These  are  classified  as  pri- 
mary social  interests  and  economic  interests.  The  former 
constitute  the  undisputed  field  of  the  police  power,  in  which 
state  control  is  universally  regarded  as  legitimate.  These 
interests  are  peace  and  security  from  crime  (chap.  IV),  public 
safety  and  health  (chap.  V),  public  order  and  comfort  (chap. 
VI),  and  public  morals  (gambling,  drink  and  vice,  chapters 
VII,  VIII,  IX).  The  control  of  dependent  classes  is  treated  in 
connection  with  these  interests  (chap.  X). 

The  economic  interests  relating  to  the  conditions  of  produc- 
tion and  distribution  of  wealth  constitute  the  debatable  field 


111 


618541 


j^.  PREFACE. 

of  the  police  power.  The  prevention  of  fraud  (chap.  XI)  is 
generally  conceded  to  be  a  legitimate  function,  but  the  pre- 
vention of  oppression  is  frequently  met  by  the  assertion  of  a 
constitutional  right  of  liberty  of  contract.  The  legislation 
against  oppression  deals  with  the  protection  of  debtors  (chap. 
XII »  and  of  laborers  (chap.  XIII),  and  with  combinations  of 
labor  (chap.  XIV)  and  of  capital  (chap.  XV).  Closely  con- 
n.'cted  with  the  latter  is  the  state  control  of  corporations  (chap. 
XVI),  while  the  restraint  of  perpetuities  (chap.  XVII)  pre- 
sents but  few  constitutional  aspects. 

The  important  classes  of  business  which  require  special  state 
control  by  reason  of  natural  monopoly  or  legal  privileges,  are 
tn-ated  under  the  head  of  business  affected  with  a  public 
interest  (chap.  XVIII),  while  the  limitations  upon  rights  of 
property  resulting  chiefly  from  public  easements  or  natural 
conditions  are  discussed  under  the  head  of  qualified  property 
(chap.  XIX).  A  chapter  on  compulsory  benefits  (chap.  XX), 
showing  how  far  the  individual  may  be  compelled  to  act  for 
his  own  benefit  or  that  of  limited  groups,  concludes  this  part 
of  the  treatise.  , 

The  third  part,  entitled  fundamental  rights  under  the  police 
power,  is  naturally  divided  into  three  main  subportions: 
liln-rty.  property,  and  equality. 

Immunity  from  governmental  restraint  is  generally  conceded 
to  the  lilxTty  of  the  body,  and  to  the  liberty  of  private  con- 
duct, cla.ssed  together  as  personal  liberty  (chap.  XXI)  ;  our 
con.stitutions  expressly  guarantee  religious  and  political  liberty 
(chap.  XXII);  of  the  economic  aspects  of  liberty  (chap. 
XXI 1 1  .  tlint  of  migration  and  settlement  is  fully  recognised, 
whih'  the  freodom  of  contract  jmkI  of  pursuit  of  livelihood  has 
at  h»'Ht  an  uncertain  status. 

Thf  huliject  of  property  is  practically  identical  v/ith  that  of 
V.  .t.(i  ritrhts.  the  protection  of  which  under  adverse  claims  of 
pul.hr  policy  forms  one  of  the  most  difficult  problems  of  con- 
Hlilulionni  law.  A  chapter  f)n  appropriation,  injury  and  de- 
ulnirtion  (chap.  XXIV)  .lilTcreiitiates  police  power  from 
rniinc-nt  domain,  regulation  from  taking,  and  useful  property 
from  danRoroiiH  things.  Retroactive  legislation  sacrificing 
Vf-nlcil  rijfhts  f.,  »  change  of  legislative  policy  is  discussed 
luuU'T  the  hen.lH  of  confiscatory  regulation  (chap.  XXV)  and 
public  RranU  and  licenscH  (chap.  XXVI),  and  the  chief  his- 


PREFACE.  y 

torical  illustrations  of  the  conflict  of  vested  rights  and  public 
policy  are  reviewed  under  the  head  of  social  and  economic 
reforms  (chap.  XXVII). 

The  principle  of  equality  (chap.  XXVIII)  constitutes  a 
limitation  upon  the  police  power  of  equal  importance  with  that 
of  vested  rights.  It  means  that  government  shall  neither  im- 
pose particular  burdens  upon  individuals  or  corporations  to 
meet  dangers  for  which  they  cannot  in  justice  be  held  respons- 
ible (chap.  XXIX),  nor  grant  special  privileges  or  monopolies 
(chap.  XXX),  and  that  all  legislative  discrimination  should 
be  justified  by  differences  of  status,  act,  or  occupation,  corre- 
sponding to  the  difference  of  legislative  measures  (chap. 
XXXI). 

The  law  of  the  police  power  is  practically  a  growth  of  the 
last  thirty  or  forty  years,  and  much  of  it  remains  unsettled. 
There  has,  however,  been  a  sufficient  amount  of  judicial  dis- 
cussion and  decision  to  warrant  the  attempt  to  summarise  the 
results  so  far  reached.  A  work  upon  a  subject  which  is  still 
in  a  formative  stage  is  necessarily  constructive,  and  the  writer 
must  claim  considerable  independence  in  the  classification  and 
formulation  of  principles ;  but  it  is  hoped  that  the  substance  of 
the  law  as  given  in  this  treatise  will  be  found  to  be  a  faithful 
and  accurate  presentation  of  the  authorities.  The  author  will 
be  satisfied  if  he  has  succeeded  in  making  some  contribution  to 
the  correct  understanding  of  a  branch  of  the  law  which  yields 
to  no  other  in  importance  and  interest. 

E.  F. 

University  of  Chicago, 
January,  1904. 


CONTENTS. 


THE    POLICE    POWER. 

FIRST  PART :    NATURE  AND  GENERAL  SCOPE  OF  THE 

POLICE  POWER. 

CHAPTER  I. 

GOVERNMENTAL   POWERS   AND   PUBLIC   POLICY. 

§      1.     Division  of  governmental  powers. 

§      2.     The  term  "police." 

§      3.     The  term  ' '  police  power. ' ' 

A.    The  Police  Power  as  a  Means  of  Furthering  the  Public  Welfare. 

§§  4-2L 

Division  of  objects  of  government. 

Maintenance  of  national  existence. 

Supply  of  ways  and  means. 

Maintenance  of  right  and  the  redress  of  wrong.  Civil  and  crim- 
inal justice. 

Public  welfare  or  internal  public  policy. 

Scope  of  internal  public  policy  and  welfare. 

The  primary  social  interests:  safety,  order  and  morals. 

Care  and  control  of  dependents. 

Economic  interests. 

Non-material  or  ideal  interests. 

Political  interests. 

Relative  attitude  of  the  government  toward  the  three  classes  of 
interests. 

Relation  between  private  right  and  public  welfare. 

The  constitution  as  judicially  enforceable  law. 

Specific  limitations  upon  police  legislation. 

General  limitations. 

Due  process  of  law. 

Justice  and  judicial  policy. 

B.    The  Police  Power  as  a  Power  of  Restraint  and  Compulsion. 

§§  22-26. 

§    22.     Corporate  and  moral  capacity  of  the  state. 

§    23.     Corporate  powers  of  state  and  individual  rights. 

vii 


§ 

4. 

§ 

5. 

§ 

6. 

§ 

7. 

§ 

8, 

§ 

9. 

§ 

10. 

§ 

11. 

§ 

12. 

§ 

13. 

§ 

14. 

§ 

15, 

§ 

16, 

§ 

17, 

§ 

18, 

§ 

19, 

§ 

20, 

§ 

21 

^jjj  CONTENTS. 

S    24.     Power  over  licenses  and  privileges. 

§    25.     The  police  power  and  other  restraining  powers. 

S    26.     Police  legislation  and  the  criminal  law. 

CHAPTEE    II. 

METHODS    OF    THE    POLICE    POWER. 

§    27.     Outline. 

S    2S.     Restraint  as  distinguished  from  regulation  and  prohibition. 

Positive  standards  and  Umitations.     §§  29-34. 

§  29.  General  principle. 

§  3(t.  Imposed  standards  as  compared  with  customary  standards. 

5  31.  Regulations  applied  to  innocuous  conditions. 

S  32.  Standards  of  articles  of  consumption. 

§  33.  Regulation  by  municipal  authority. 

i  34.  Choice  between  measures  of  equal  efficiency. 

Regulations  to  insure  compliance  with  the  law.     §§  35-57. 
§    35.     Prevention  through  publicity. 

Licenses.     §§  36-39. 

i  36.  In   general. 

(  37.  License  or  occupation  tax. 

I  38.  Licen!«c  as  a  police  measure. 

I  39.  High  liconse  as  a  method  of  restriction. 

8  40.  iJonds  an<l  dcitosits. 

Notices,  tiiiirhs  and  si(fns. 

i     11.     I'urpoHc  and  application. 

Reports  and  Registration.     §§  42-46. 

I  42.  In  general. 

I  43.  As  applied  to  business. 

I  44.  v;.  ....■.,.., I  information. 

I  4.'5.                 . m  and  regist ration  of  strangers. 

I  4'!.  H4'giiitratton  and  c<)uality. 

Inspection.     5§  47,  48. 

I    47.     InirpiTdion  and  search. 
I    4H.     Hccrwrjr  of  Jotters. 

S'otice  of  a  prrjudicial  character.     §§  49-52. 


f  49.  Offensive  roloring. 

I  60.  ({(nnIs  marked  mnvlct  made. 

f  fiL  OotkIs  marked  tenement  made. 

I  62.  RcHutling  iujury. 


CONTENTS.  ix 

Notice  of  an  incriminating  character.    §§  53-55. 

§    53.     Eequiring  statement  as  to  lawful  conduct  of  business. 

§    54.     Immunity  from  prosecution. 

§    55.     Obligation  to  report  subject  to  claim  of  privilege. 

Com'pulsory  association.     §§  56,  57. 

§    56.     Legislation  using  it  as  a  means  of  control. 
§    57.     Principles  applicable. 

Prohibition.     §§  58-62. 

§    58.     Meaning  of  prohibition. 

§    59.     What  kinds  of  business  may  be  prohibited:   lotteries,  speculation, 

liquor. 
§    60.     Trading  stamp  business. 
§    61.     Ticket  brokerage. 
§    62.     Oleomargarine  legislation. 

The  principle  of  reasonableness. 
§    63.     Enforcement  by  courts. 

CHAPTER  III. 

THE  FEDERAL  GOVERNMENT  AND  THE  POLICE  POWER. 

§    64.     Police  power  in  a  federal  state. 

Positive  police  legislation  of  the  federal  government.     §§  65-67. 

§    65.     Powers  of  Congress. 

§    66.     Commerce  and  navigation. 

§    67.     Indians  and  territories. 

Control  over  state  police  power.    §§  68-85. 

§    68.     Constitutional  provisions  applicable. 
§    69.     The  fourteenth  amendment. 

The  commerce  cla',:se.     §§  70-85. 

§  70.  Different  subjects  of  legislation. 

§  71.  Immigration  and  quarantine. 

§  72.  Navigation  and  navigable  waters. 

§  73.  Railroads  and  common  carriers. 

§  74.  Peddlers,  auctioneers,  brokers,  and  drummers. 

§  75.  Inspection  laws. 

§  76.  Liquor. 

§  77.  Foodstuffs  and  live  stock. 

Principles  underlying  the  decisions  of  the  Supreme  Court.     §§  78-85. 

5    78.     Nature  of  distinctions. 

§    79.     Business  which  is  commerce  and  business  which  is  not  commerce. 

§    80.     Local  and  national  aspect  of  commerce. 


^  CONTENTS. 

9  81.  Point  at  which  commerce  ceases  to  be  interstate  or  foreign  com- 
merce; original  package  doctrine. 

g    82.     The  principle  of  non-discrimination. 

9  83.  Things  which  are  lawful  articles  of  commerce  and  things  which 
are  not.     State  power  of  exclusion. 

I    84.     Conflict  between  state  policy  and  freedom  of  commerce. 

(    85.     Summary  of  principles. 

SECOND  PART:     THE  PUBLIC  WELFARE. 

FIRST:      THE  PRIMARY   SOCIAL  INTERESTS:      SAFETY,   OEDEE 

AND  MOEALS. 

CHAPTER    IV. 

PEACE   AND   SECURITY    FROM    CRIME. 

S    86.  Police  patrol  and  general  vigilance. 

5    87.  Arrest. 

J    88.  Suppression  of  riot. 

89.  Security  of  the  peace. 

90.  Concealed  weapons. 

91.  Military  organisations. 

92.  Bodies  of  armed  men. 

93.  Restraints  upon  business  and  upon  particular  dealings. 

94.  Criminal  character. 

95.  Reputation. 

96.  Kno\vn  thieves. 

97.  Vagrancy,  vagabondage  and  criminal  idleness. 
9H.  Vagrancy  not  a  status  nf  dependence. 
99.  Vagrancy  a  criminjil  oflfense. 

100.  Vagrancy  as  a  means  of  dealing  with  suspects. 

101.  Control  over  irnmigr:ition. 

102.  Control  over  criniiiialH  :iftcr  conviction. 

103.  Mcuxnreii  during  imprisonment. 

104.  Conditional  pardon. 

105.  Indeterminate  Hcnfencc  laws  and  parole. 

106.  QucMlion  of  delegation  of  juilifial  powers. 

107.  I'lirolc  con<litionn  a  form  of  police  Hujicrvision. 

108.  Suapcniiion  of  ncntence  and  probation. 
IW.  K«'<Mirity  of  jjood  behavior. 
IKi.  ninabilitics  of  ox-convictH. 

rilAPTKU    V. 

PAKETY   AXn  HEALTH. 

1111.  c;rnw(h  of  loginlation. 

1112.  Priodpul  nubjoctii  of  legislation. 


CONTENTS. 


XI 


Safety  legislation.     §§  113-121. 

§  113.  Classification  of  subjects. 

§  114.  Protection  against  overflow  and  inundation, 

§  115.  Mines, 

§  116.  Kailroads, 

§  117.  Ships  and  navigation. 

§  118.  Buildings  and  structures. 

§  119.  Dangerous  machinery,  inflammable  materials,  explosives,  poisons,  &c. 

§  120.  Dangerous  sports. 

§  121,  Destructive  animals  and  vermin,  noxious  weeds,  and  other  pests. 

Sanitary  legislation.    §§  122-133. 

§  122,  Scope  of  state  activity. 

§  123.  Persons.     Immigration  and  quarantine. 

§  124.  Marriage. 

§  125.  Burials  and  cemeteries. 

§  126.  Dead  bodies. 

§  127,  Land,  structures  and  buildings. 

§  128.  Buildings  and  other  establishments. 

§  129.  Foodstuffs,  &c. 

§  130.  Other  articles  of  consumption, 

§  131.  Employment, 

§  132,  Qualification  for  the  exercise  of  callings  affecting  health. 

§  133.  Practice  of  medicine. 

Limitatio7is  of  the  federal  constitution  upon  the  police  power  for  the  protec- 
tion of  safety  and  health.     §§  134-139. 

§  134.  Fourteenth  Amendment  and  commerce  clause. 

§  135.  Safety  legislation  affecting  commerce. 

§  136.  Federal  power  not  exclusive  of  protective  state  legislation. 

§  137.  Exercise  of  state  police  power  not  conclusive. 

§  138,  Discriminative  legislation  under  color  of  sanitary  power. 

§  139.  Louisiana  v.  Texas. 

Local  powers  for  the  protection  of  safety  and  health.    §§  140-142, 

§  140.     Delegated  ordinance  powers. 

§  141.     Principle  of  construction. 

§  142.     Judicial  control  as  to  reasonableness. 

Limitations  of  health  and  safety  powers  with  reference  to  conditions  and 

measures.     §§  143-155, 

§  143,  The  problems  involved. 

S  144.  Inconclusiveness  of  legislative  judgment. 

§  145,  Judicial  notice  of  established  scientific  laws  and  general  conditions. 

§  146,  Sanitary  purpose  need  not  be  expressed. 

§  147,  Difference  of  objects  as  justifying  different  measures. 

§  148.  Measure  must  tend  to  remove  danger. 


jjj  CONTENTS. 

S  14y.     Measure  need  not  be  tne  most  adequate  conceivable. 

{  150.     Measure  proportionate  to  danger. 

S  151.     Interference  with  established  economic  or  social  conditions. 

15  152-154.     The  practice  of  medicine  and  freedom  of  science. 

{  155.     Measures  restraining  a  class  for  its  own  protection. 

CHAPTER    VI. 

PUBLIC  ORDER  AND  COMFORT. 

Authority  exercising  the  power.     §§  156-159. 

I  156.  Municipal  ordinance  power. 

9  157.  Concurrence  of  local  and  state  authority. 

I  158.  Reasonableness. 

I  159.  Order  and  freedom  of  commerce. 

Power  over  encroachments  on  streets.    §§  160-164. 

I  160.  Fee  and  easement. 

J  161.  Control  of  public  use. 

(  162.  Customary  encroachmente. 

f  163.  Power  to  j)rohibit  and  regulate. 

I  164.  Pnifi-.tiiiri  of  streets  from  injury. 

J  he  comn.nn  rir/ht  to  use  jmblic  places.     §§  165-170. 

I  165.  Nature  of  common  use. 

I  16<1.  Power  to  vacate  highway. 

I  167.  Power  over  use  of  street  not  absolute. 

I  168.  Rztcnt  of  common  use. 

I  169.  Ohntruption  and  disorderly  conduct. 

I  170.  Pro  of  rivers. 

I  171.  Kigbt  to  use  parks,  public  buildings,  etc. 

Sjii.i.il  street  uses. 

I  17...     Si'fii.il  iiHOH  i.f  ahuttcrs. 

I  173.     I'lw  for  profit. 

I  174.     Vbo  for  pnrndeii,  processions,  public  addresses  and  meetings. 

Pover  over  places  of  public  resort  in  private  ownership. 
I  175.     Subject  to  police  regulation. 

Offcnsivenrss.     S§  170- 179. 
I  176.     n^rr..:r,.n«-.  ^^  f^  nuiwince. 
I  "7-  ■  r  over  ofTcnHjvo  establishments. 

I  I7H.     K«<«ii«nnblono«Mi  of  ntnndards. 
I  I7».     AMiitrnmrnt  to  npeoifled  dixtrirfs. 

Untightliurss.     S9  180183. 

I  I«0.     I.Jmitinjt  Ihp  height  of  buildingw  ndjarent  fo  public  parks. 
I  Ml.     HuiWlititf  fpgulntionii  not  for  i)urely  aesthetic  purposes. 


CONTENTS.  xiii 

§  182.     Unsightly  advertisements. 
§  183.     Flag  legislation. 

Sunday  rest.    §§  184-186. 

§  184.     Legislation. 

§  185.     Protection  of  customary  quiet. 

9  186.     Prohibition  of  business. 

CHAPTER  VII. 

PUBLIC    MORALS. 
§  187.     In  general. 

GAMBLING. 

§  188.     Justification  of  exercise  of  police  power.     §  730. 
§  189.     Games  for  pastime  and  recreation. 

Games  of  chance.     §§  190-191. 

§  190.     Legislation. 

§  191.     Aggravating  circumstances. 

Games  of  sJcill  and  contests.     §§  192-195. 

§  192.     Playing  for  money. 

§  193.     Billiard  tables  and  bowling  alleys. 

§  194.     Horse  races. 

§  195.     Betting. 

Lotteries.     §§  196-198. 

§  196.     Authorized  lotteries. 
§  197.     Definition  of  a  lottery. 
^  198.     Gifts  to  attract  custom. 

Speculation.    §§  199-203. 

§  199.  Legitimate  speculation. 

§  200.  Stock  and  produce  speculation. 

§  201.  Legislation  restraining  dealings  in  futures  and  options. 

§  202.  Places  facilitating  speculation. 

§  203.  Foreign  legislation  regarding  exchanges. 

CHAPTER   VIII. 

PUBLIC  MORALS    (Continued).     INTOXICATING  LIQUORS. 

§  204.     Constitutional  basis  of  control. 

§  205.     Principal  points  of  legislation  and  policy. 

1.     'Regulation  of  the  liquor  traffic.     §§  206-212. 

S  206.     Right  to  sell  without  license  or  issue  of  license  as  a  matter  of  right — 

exclusion  of  administrative  discretion. 
5  207.     Right  to  sell  subject  to  statutory  disqualifications  and  conditions. 


XIV 


CONTENTS. 


§  208.     Requirement  of  a  Ucense  to  be  issued  as  a  matter  of  judicial  dis- 
cretion. 
9  209.     Judicial  control. 
§  210.     Considerations  guiding  discretion. 
§  211.     Absolute  limitation  of  numbers. 
5  212.     Right  to  sell  depending  upon  uncontrolled  discretion. 

2.     Prohibition.     §§  213-217. 

(  213.  Constitutionality. 

{  214.  State  wide  prohibition. 

i  215.  Scope  of  prohibition. 

I  216.  Local  power  of  prohibition. 

I  217.  Local  option. 

3.     Public  monopoly.    §§  218-219. 

I  218.     South  Carolina  dispensary  law. 
I  219.     Gotenburg  system. 

4.     Liquor  not  used  as  a  beverage.     §§  220-224. 

I  220.     Subject  to  control. 

I  221.     Liquor  unsuitable  for  drink. 

I  222.     Liquor  suitable  but  not  intended  for  a  beverage,  under  the  system 

of  restrictive  legislation. 
I  223.     The  same  under  the  system  of  prohibition. 
I  224.     Sale  of  wine  for  sacramental  purposes. 

5.     The  excessive  use  of  intoxicating  liquors.     §§  225-227. 

1 225.     Intoxication. 

I  226.     Habitual  intemperance. 

I  227.     Compulsory  conimitnient  to  asylums. 

0.     The  liquor  traffic  and  the  federal  co7istitution.     §§  228-233. 

I  228.  I'rovjsions  applicable. 

I  229.  Hif^ht  i>f  citizenship. 

i  L'.io.  Kn-ciirtm  of  conimorce. 

I  231.  Lirrnno  cases. 

I  LTi'J.  LciHy  V.  Hardin  and  the  Wilson  Act. 

I  233.  The  South  Carolina  Law. 

CHAPTER    TX. 

PUDLIC   MORALS    (CoMtimud).     VICE  AND  BRUTALITY. 

1.     Srxual  lice.     §§  234-246. 
I  234.     Piirpodo  find  Hcopc  of  police  control. 

LoMciviousvciiH  and  oh«cenity.    §§  235-239. 

I  23't.     I,«»wd  nnd  Innrivinun  conduct. 

I  23fl,     ()h«iri<nc  prrformnncrn  and  publications. 


CONTENTS.  XV 

§  237.     Tests  of  obscenity. 

§  238.     Legitimate  purposes :    science,  social  reform,  etc. 

§  239.     Art  and  literature. 

Illicit  sexual  intercourse.     §§  240-246. 

§  240.  Notorious  cohabitation. 

§  241.  Autonomistic  marriage. 

§  242.  Prostitution.    Scope  and  ground  of  state  control. 

§  243.  Systems  of  legislation. 

§  244.  Measures  against  prostitutes. 

§  245.  Houses  of  prostitution. 

§  246.  Practices  in  aid  of  prostitution. 

2.     Brutality  and  inhumanity.     §§  247-249. 

§  247.     Legislation. 

§  248.     Brutal  sports  and  entertainments. 

§  249.     Cruelty  to  animals.     Vivisection. 

3.     Public  amusements.     §§  250-251. 

§  250.     Ground  and  scope  of  police  control. 

§  251.     Control  over  theatres.    Stage  censorship. 

CHAPTEE  X. 

CONTROL  OF  DEPENDENTS. 

Insanity.     §§  252-256. 

§  252.  Restraints  placed  on  the  insane. 

§  253.  Provisions  held  defective. 

§  254.  Constitutional  requirements. 

§  255.  Eight  to  discharge. 

§  256.  Control  of  private  asylums. 

Minors.     §§  257-267. 

§  257.  In  general. 

§  258.  Restrictive  legislation. 

§  259.  Constitutionality. 

§  260.  Parental  right  of  custody  and  commitment  to  reform  institutions. 

§  261.  Dependence  or  delinquency. 

§  262.  Notice  to  parent. 

§  263.  Discharge  from  institution. 

§  264.  Compulsory  education. 

§  265.  Truant  schools. 

§  266.  Power  over  private  education. 

§  267.  Power  over  graduate  instruction. 

Pauperism  and  charity.     §§  268-271. 

§  268.  General  attitude  of  the  state. 

§  269.  The  state  and  private  charity. 

§  270.  Compulsory  support  by  relatives. 

§  271.  Restrictive  measures  against  paupers. 


^^j  CONTEXTS. 


SECOXD:     ECONOMIC  IXTEEESTS. 

PROTECTIOX  AGAIXST  FRAUD  AND  OPPRESSION. 

PUBLIC  CONVENIENCE    AND  ADVAXTAGE. 

CHAPTER    XI. 

PROTECTIOX  AGAIXST   FRAUD. 

S  272.     Preventive  measures  against  fraud. 

Weights,  measures  and  packages.    §§  273-275. 

5  273.     Legislation. 

9  274.     Detcrmiuation  and  verification  of  standards. 

S  275.     Compelling  certain  modes  of  dealing. 

Inspection  laws.     §§  276-278. 

S  276.     Scope  of  legislation. 

S  277.     Validity  under  federal  constitution. 

{  278.     Restrictions  under  state  constitutions. 

Substitutes,  imitations,  adulterations.    §§279-286. 

I  279.  Poor  quality  without  deception. 

i  'J80.  Deceptive  practices.     Adulteration. 

9  28L  Commodities  to  which  legislation  applies.     Gold  and  silver. 

{  282.  Oleomargarine   legislation. 

S  I'm:?.  .\hH()!ute  prohibition. 

S  Ust.  I'riiliibition  of  imitation. 

9  285.  Principles  governing   regulation   and   prohibition. 

9  286.  Ordinances. 

Forms  of  business  liable  to  abuse.     §§  287-295. 

I  217.  Nature  of  danger  or  <>vil. 

{  J  MS.  i'cfldlcrH. 

{  L'S'.t.  .'^opo   (if   legislation. 

i  L".'(i.  Auctioiii'crH. 

I'J'.'I.  Tnkcl  broker.ige. 

I    '•  '  Miiiikrupt  and  firo  naleo. 

{  ift  mili>fi  nn<l  trade  Htamps. 

5  -    etc.,  and  the  freeilr)m  of  commerce. 

h'idtlttjt  uf  agents,  ili pimilnni s,  (nitl   litistrrs.     §§  296-297. 

5  orpnmlionii,  banking,  insurannc. 

i  ..j'l".     Wjirrh(i\iiM'mrn  and  commiHsicm  merchants. 

9  ~t>H.     Public  inlereMt  in  prevention  of  fr;ni<l.     Tioftliiig  Acts. 


CONTENTS.  xvii 

CHAPTER    XII. 
PEOTECTION  OF  DEBTORS.  - 
§  299.     Protection  against  oppression  in  general. 

Collection  of  debts.    §§  300-301. 
§  300.     Scope  of  legislation. 
§  301.     Annoying  practices  in  the  collection  of  debts. 

Usury  laws.     §§  302-304. 
§  302.     History  of  legislation, 
§  303.     American  legislation. 
§  304.     Question  of  constitutionality. 

BanJcrvptcy  legislation.     §§  305-307. 
§  305.     Power  to  relieve  insolvents. 
§  306.     Prospective  state  insolvency  laws, 
§  307.     Retrospective  bankruptcy  legislation. 

Legislation  against  contracts  payable  in  gold.    §§  308,  309. 
§  308.     Statutory  provisions. 
§  309.     Constitutionality. 

CHAPTER  Xni.' 

PROTECTION  OF  LABORERS. 

§  310.  In  general. 

§  311.  Restriction  of  hours  of  labor  of  females. 

§  312.  Commonwealth  v.  Hamilton  Mfg.  Co. 

§  313.  Ritchie  v.  People. 

§  314.  Question  whether  measure  sanitary  or  social. 

§  315.  Legislation  for  adult  laborers. 

§  316.  Hours  of  labor. 

§  317.  Question  of  constitutionality. 

§  318,  Rate  of  wages. 

§  319.  Payment  of  wages:    weekly  payment  and  store  order  acta. 

§  320.  Judicial  decisions. 

§  321.  Constitutional  principle. 

§  322.  Imposed  conditions  and  penalties. 

§  323.  Penalty  for  leaving  without  notice. 

§  324.  Fines  for  imperfect  work. 

§  325.  Coercion  to  influence  or  prevent  the  exercise  of  political  rights 

§  326.  Coercion  against  membership  in  trade  unions. 

§  327.  Blacklisting  and  clearance  cards. 

§  328.  Employment  brokerage. 

§  329.  Federal  legislation  for  the  protection  of  labor. 

CHAPTER  XIV. 

COMBINATIONS  OF  LABORERS. 

§  330.     Combinations  under  the  English  law. 
§  331.     Earlier  American  cases  and  statutes. 


iVUl 


CONTENTS. 


S  332.  Question  ol  the  legality  of  strikes. 

S  333.  Intimidation  and  coercion. 

5  334.  Malicious  interference. 

5  335.  Constitutional  power  o%er  strikes. 

5  336.  Strike  as  a  source  of  disorder. 

5  337.  Strikes  and  trusts. 

CHAPTER   XV. 

COMBINATIONS    OF    CAPITAL. 

RESTRAINT  OF  TRADE,  MANIPULATION  OF  PRICES,  ANU 

TRUSTS  AND  MONOPOLIES. 

S  338.  English  legislation. 

S  331t.  American  legislation. 

§  340.  Analysis  of  provisions. 

S  341.  Federal  anti-trust  legislation. 

5  34::.  Division  of  control  between  states  and  United  States. 

i  343.  Restraint  of  trade  at  common  law. 

S  344.  Associations  with  restrictive  by-laws. 

S  345.  Agreements  not  to  deal  with  persons  acting  contrary  to  agreement. 

S  340.  Exclusive  selling  arrangements.     Rebates. 

S  347.  ARrcements  to  fix  prices,  limit  sui)plies,  or  divide  business. 

5  34S.  Covenants  by  vendor  of  business. 

S  341).  Consolidation  of  different  concerns. 

(  350.  Trusts. 

I  S.*)!.  Consolidation  of  corporations. 

I  352.  Monopolistic  corporation. 

j  353.  When  is  the  point  of  monopoly  reached? 

J  3.'>4.  Intcrprctution  of  anti-trust  acts. 

I  35.').  Constitutionality  of  anti-trust   legislation. 

I  350.  Discrimination  between  combinations  for  different  purposes. 

CllAl'TEK  XVI. 

CORPORATIONS. 

I  357.  AMocintion  nnd  incorporation. 

I  S.W,  The  right  to  iiicorpurafe  as  a  license. 

I  3.'i9.  Hporial  rharters  ami  general  incorporation  laws. 

f  ."WO  Kmtrictions  on  corporate  capacity. 

I  3fll,  Tho  rhnrtcr  an  n  contract  nnd  rcservafion  of  legislative  power. 

••    ■  r  .,ji„n„  „f  j|„,  doctrine  of  the  Dartmimth  (College  case. 

I  ■'        t  ••ffert  of  Dartmouth  <'ull<'ge  dnlHion. 

1 364.  Compuliinry   incorporation. 

Cll.M'TKlJ  XVII. 

FUKEDOM   OF   rUOPFUTV     I'ERrETT'TTTES. 
J.V.  ..     1,.      •        --y. 
I  ."WWi,      I)<  r  tying  up  property.     Civil  luw. 


CO.XTEJNTS.  2:ix 

§  367.  Common  law.     The  rule  against  perpetuities. 

§  368.  Mortmain  legislation  in  England. 

§  369.  Mortmain  legislation  in  America. 

§  370.  Perpetual  rents. 

§  371.  Long  leases. 

CHAPTER    XVIII. 

BUSINESS  AFFECTED  WITH  A  PUBLIC  INTEREST. 

§  372.     Statement  of  doctrine. 

§  373.     Kinds  of  business  and  forms  of  control. 

Regulation  of  charges.     §§  374-385. 

§  374.  English  legislation. 

§  375.  American  legislation. 

§  376.  Attitude  of  the  courts. 

§  377.  Justification  by  legal  or  virtual  monopoly. 

§  378.  Constitutionality  in  other  cases. 

§  379.  Earlier  doctrine  that  reasonableness  legislative  question. 

§  380.  Regulation  not  confiscation. 

§  381.  Rates  fixed  by  commission  and  due  process. 

§  382.  Rates  fixed  by  legislature. 

§  383.  Jurisdiction  of  federal  courts. 

§  384.  Difiiculties  of  judicial  control. 

§  385.  Judicial  regulation. 

Bequiremejit  of  equal  service.     §§  386-394. 

§  386.  To  what  kind  of  business  applicable. 

§  387.  Equal  and  sufficient  service. 

§  388.  Grounds  of  requirement. 

§  389.  Objects  of  discrimination. 

§  390.  Legislation   against   discrimination, 

§  391.  What  constitutes  unjust  discrimination. 

§  392.  Circumstances  justifying  discrimination. 

§  393.  Discrimination  allowed  or  prescribed  by  law. 

§  394.  Discrimination   forbidden   though   circumstances   dissimilar. 

Requirements   of  particular  arrangements   in   the  interest   of   public  con- 
venience.    §§  395-398. 

§  395.     Particular   arrangements   not   within    common   law    duty    of   equal 

service. 
§  396.     Cab  and  other  privileges  granted  by  railroad  companies. 
§  397.     Legislative  requirements. 
§  398.     Public  convenience  not  ordinarily  a  ground  of  police  control. 

Requirements  and  reductions  in  the  interest  of  financial  security.   §§  399-401. 

§  399.     Banking  and  insurance. 

§  400.     Grounds  of  control. 

§  401.     Restriction  of  right  to  carry  on  business. 


^^  CONTENTS. 

CHAPTER    XIX. 

QUALIFIED   PROPERTY. 
S  402.     In  general. 

Navigable  waters  and  riparian  rights.     §§  403-409. 

S  403.  Title  and  easement  of  navigation. 

§  404.  Land  covered  by  water. 

§  405.  Special  grants.     Commonwealth  v.  Alger. 

§  406.  Establisbmeut  of  harbor  lines.     Effect  on  existing  wharves. 

i  407.  Obstructions  under  act  of  Sept.  19,  1890. 

9  408.  Easements  of  the  riparian  owners. 

i  409.  Riparian  land. 

Mill  dam  privileges.    §§  410-413. 

S  410.  Legislation. 

8  411.  Theory  of  Massachusetts  courts. 

5  41--  Taxing  for  public  use. 

5  413.  Other  legislation  authorizing  the  flooding  of  land. 

Natural  water  as  qualified  property.     §§  414-417. 

8  414.  Common   law  easements. 

8  415.  Doctrine  of  prior  appropriation. 

8  416.  Subordination  of  right  to  beneficial  purpose. 

8  417.  Constitutional  recognition  of  doctrine. 

Game  and  fish.     §§  418-421. 

8  418.  Common  law  and  legislation. 

8  419.  Constitutionality. 

I  4li0.  Game  and  fi.sh  laws  and  freedom  of  commerce. 

|4L'l.  Property  in  dogs. 

Uagtc  of  natural  ucalth.     §§  4l2L'-423. 

8  4-J.     Hnmo  and  fixh.     Natural  gas. 
I  4l.'3.     Fort-lit  prcHcrvation. 

Jlettrictionn  on  property  in  the  interest  of  other  owners.     §§  424-427. 

I  424.  LanempntH  of  support. 

1 425.  Nutiirai  walvrtt. 

I  426.  Malirious  creotions  and  private  nuisances. 

1427.  Privato  roads. 

CIIAI'TKU    XX. 

COMPULSORY  HENEFITS. 

I'rotwtion  and  bountien. 
I  4»'i*.     Hcopo  of  poliro  power. 

Comput$orj/  menMurca  against  improvidence.     55  430-437. 

!  •  ^  -v  lawn, 

I  4^1.      ^t»  I'll  iirifta. 


CONTENTS.  XXJ 

§  432,  Compulsory  insurance. 

§  433.  Its  constitutional  aspect. 

§  434.  American  legislation  providing  insurance. 

§  435.  Insurance  in  connection  with  registration  of  titles. 

§436.  Teachers'  pension  funds. 

§  437.  Compulsory  insurance  of  workmen. 

Compulsory  industry  and  improvement.     §§  438-439. 
§  438.     Former  English  and  colonial  legislation. 
§  439.     Constitutional  aspect  of  such  legislation. 

Compulsory  joint  improvements.    §§  440-444. 
§  440.     Difference  from  cases  before  considered. 
§  441.     Drainage  and  irrigation. 
§  442.     Constitutional  justification. 
§  443.     ±^arty  walls. 
§  444.     Division  fences. 

THIRD  PART :    FUNDAMENTAL  RIGHTS  UNDER  THE 

POLICE  POWER. 

FIRST :     LIBERTY. 

CHAPTER    XXI. 

PERSONAL   LIBERTY. 

§  445.     Different  aspects  of  liberty. 
Note — The  right  to  life. 

Liberty  of  the  body.    §§  446-452. 

§  446.  Cases  of  deprivation  of  personal  liberty. 

§  447.  Compulsory  vaccination. 

§  448.  Compulsory  service  and  labor  contracts. 

§  449.  Unreasonable  contracts  to  serve. 

§  450.  Contract  labor  laws. 

§  451.  American  legislation. 

§  452.  Specific  enforcement  and  criminal  punishment. 

Liberty  of  private  conduct.     §§  453-457. 

§  453.  Legislative  policy. 

§  454.  Private  consumption  of  liquor. 

§  455.  Question   of  constitutional  right. 

§  456.  Principle  of  statutory  construction.     Liquor  in  clubs. 

§  457.  Freedom  of  social  intercourse. 

CHAPTER  XXIL 

CIVIL  LIBERTY:      RELIGIOUS  AND  POLITICAL. 

Freedom  of  religion.    §§  458-470. 

§  458.     The  constitutional  guaranty. 
§  459.     Repressive  sectarian  legislation. 


XXll 


CONTENTS. 


§  460.  Support  of  church  out  of  public  funds. 

§  461.  Keligious  disqualifications. 

i  462.  Kecognition  of  religion. 

§  463.  The  Bible  in  public  schools. 

§  464.  Protective  and  restrictive  legislation. 

§  465.  Blasphemy. 

§  466.  Regulative  legislation. 

§  467.  Limits  of  religious  freedom. 

§  468.  Practices  and  doctrines  in  conflict  with  public  safety  and  order. 

S  469.  Conflict  between  civic  and  religious  duties. 

§  470.  Sunday  laws. 

Freedom  of  speech  and  press.     §§  471-479. 

§471.  The  constitutional  guaranty  and  censorship. 

§  472.  Freedom  of  speech  and  press,  and  the  law  of  libel. 

§473.  Fox's  Libel  Act. 

§  474.  Prosecutions  for  seditious  libel  in  America. 

§  475.  Attacks  upon  government  in  general.     Anarchism. 

§  476.  Incitement  to  crime  and  violence. 

§477.  Anarchists'  cases. 

§  478.  Legislation. 

§  479.  Freedom  of  culture. 

Freedom  of  assembly  and  association.     §§  480-484. 

{  480.  Right  of  assembly  and  use  of  public  places. 

§481.  History  of  the  right  of  association. 

§482.  Constitutional  power  in  America. 

§483.  Political  parties  and  primary  election  laws. 

§  484.  Conclusions  reached.      Note — Social  control. 

CHAPTER  XXIII. 

CIVIL  LIBERTY:      ECONOMIC. 

Freedom  of  immifjrntion  and  settlement.     §§  485-491. 

§  485.  CnnBidcrationa  of  public  welfare. 

§  486.  Movement  from  and  to  foreign  countries. 

I  487.  Rmigrntion  and  cxjiatriation. 

I  488.  Ri((ht  to  come  into  a  state. 

§480.  Emigration  from  a  state. 

§  490.  Movement  from  and  to  United  States  territories. 

§491.  Migration  and  Hettlomcnt  within  a  state. 

Freedom  of  pur.suit  of  livelihood.     §§  4!t2-497. 

§  492.  Rcntrirtion  on  right  to  pursue  business  as  distinguished  from  regu- 
lation. 

§  49.3.  ClnMHfH  of  buHinnsH  requiring  liccnRo. 

§494.  I^gilimnto  gronn.lH  ..f   r.-straint  and   protection    from   competition. 

§  495.  Ccrliflrntion  in  plnoo  of  license. 

§  4W1,  Dologfition  of  legiHlntive  power. 

I  497.  Prinripio  of  oqimlity. 


CONTENTS.  xxiii 

Freedom  of  contract.    §§  498-503. 

§  498.  Contract  essential  to  property. 

§  499.  Contract  part  of  civil  liberty. 

§  500.  Freedom  of  contract  and  oppression. 

§  501.  Legislation  and  United  States  Supreme  Court. 

§  502.  Decisions  of  state  courts. 

§  503.  Formulation  of  principle. 

SECOND :      PEOPERTY. 
VESTED  RIGHTS  UNDER  THE  POLICE  POWER. 

CHAPTER    XXIV. 

APPROPRIATION,  INJURY  AND  DESTRUCTION. 

Taking  for  public  use.    Appropriation.    §§  504-506. 

§  504.     Principle  of  law  of  nature. 

§  505.     Doctrine  of  English  law. 

§  506.     American  constitutions  and  Fourteenth  Amendment. 

Injury.     §§  507-510. 

§  507.  Property  injuriously  affected  under  acts  of  Parliament. 

§  508.  Physical  invasion. 

§  509.  Doctrine  of  consequential  damages. 

§  510.  Moditications  of  doctrine. 

Talcing  to  ward  of  plihlic  injury.    §§  511-517. 

§  511.  Difference  between  police  power  and  eminent  domain,  and  principle 

of  compensation. 

§  512.  Appropriation  generally  outside  of  the  police  power. 

§  513.  Prejudicial  regulation  without  compensation. 

§  514.  Justification  of  such  regulation. 

§  515.  Regulation  of  property  rights. 

§  516.  Illustrations  of  regulation  not  amounting  to  taking. 

§  517.  Cases  of  destruction  or  abrogation  of  property  rights. 

Insubstantial  invasion  or  destruction.     §§   518-519. 

§  518.     Transitory  disturbance  of  possession.  • 

§  519.     Property  taken  of  slight  value. 

Nuisances.    §§  520-528. 

§  520.  Property  imminently  dangerous. 

§  521.  Summary  abatement. 

§  522.  Carcasses,  garbage,  &c. 

§  523.  Abandoned  animals. 

§  524.  Infected  cattle. 

§  525.  Property  unlawfully  used  and  forfeiture. 

§  526.  Judicial  safeguards. 


XXIV 


CONTENTS. 


S  5:27.     Lriwton  v.  Steele. 

S  528.     Property  erected  or  acquired  in  violation  of  law. 

Useful  and  offensive  industries.     §§  529-533. 

S  529.  Status  of  noxious  establishments. 

§  530.  Exercise  of  municipal  power. 

5  531.  Judicial  safeguards. 

J  532.  Status  of  offensive  industries  under  foreign  laws. 

S  533.  Massachusetts  law. 

Destruction  to  avoid  calamity.     §§  534-537. 

S  534.  Destruction  to  check  spread  of  fire. 

5  535.  Statutory  compensation. 

5  536.  Pestruction  for  military  purposes. 

5  537.  Where  not  ordered  by  military  authority. 

CHAPTER  XXV. 

CONFISCATORY  LEGISLATION. 

A.     Retro.\ctive  Prohibition.     §§  538-547. 

I  538.  In  general.     Principle  of  non-retroactive  operation. 

S  539.  Prohibition  against  the  use  of  property. 

I  540.  MugliT  V.  Kanwis. 

§541.  Powfll  V.  Pennsylvania. 

I  542.  Regulation  involving  partial  prohibition. 

I  543.  Prohibition  operating  upon  estt^blished  business  or  practice  of  pro- 

fi>8aion. 

5  .'■>44.  The  t<>.st  oatli   cases. 

I  545.  tlutvkcr  v.  .Now  York. 

5  540.  CriticiHm  of  Hawker  v.  New  York. 

I  547.  Prohibition  of  oleomargarine  business. 

H.       KXPKNSIVE    Al-TKKATIONS    AM)    I MPKOVEMENTS.       §§    548-549. 

I  548.     What  in  an  excesHivr  rt'ijuirement. 
I  549.     Limit  of  constitutional  power. 

C.     Heulttion  ok  ('hak<;k..s.     §§  550-554. 

I  550.  '■  ■'  and  Judicial  control. 

I  'j't\.  ition  the  whole  buHiness  within  the  state. 

I  622.  Value  of  particular  service. 

I  553.  VaIuo  of  |>re>pcrty. 

I  &&4.  Fair  rrturo. 

I),      iMfAIKMrST  or  TIIK  OllMOATION  OF  CONTRACTS.      §§   555-.560. 

f  5fi8.     Polire  pnwpf  rt^trirtci]  with  reference  to  oxisting  contracts. 
'  '   forbidden  only  if  in  interest  of  party  obligated. 

-,  iz-j^nKii lori  fdf  the  relief  (if  debtors. 


CONTENTS.  XXV 

§  558.     Retrospective  legal  tender  laws. 

§  559.     Contracts  to  pay  in  specific  kind  of  money. 

§  560.     Sealing  laws. 

CHAPTER    XXVI. 

PUBLIC  GRANTS  AND  LICENSES. 

§  561.     In  general. 

License  to  imrsue  a  business  prejudicial  to  safety  or  morals.     §§  562-564. 

§  562.     Statement  of  principle. 

§  563.     Lotteries. 

§  564.     Liquor  licenses. 

Useful   but  offensive  undertakings  carried  on  under   license. 
§  565.     Cemeteries,  markets,  &c. 

Exemptions.     §§  566-568. 

§  566.     From  personal  services. 
§  567.     From  liability  for  debts. 
§  568.     From  taxation. 

Corporate  powers  and  privileges.     §§  569-572. 

§  569.  Dartmouth  College  doctrine. 

§  570.  Question  whether  contract  or  not. 

§  571.  Illinois  water  rate  cases. 

§  572.  Reservation  of  power  to  alter  and  repeal. 

Licenses  to  use  public  property.     Street  and  other  franchises.    §§  573-577. 

§  573.  Public  utilities. 

§  574.  Question  of  municipal  power. 

§  575.  Question  of  surrender  of  police  power. 

§  576.  License  a  contract  or  a  right  of  property. 

§  577.  Revocability  not  effected  by  exclusiveness. 

Suggestions  regarding  rights  claimed  under  affirmative  sanction.   §§  578-582. 

§  578.  Theory  of  vested  rights. 

§  579.  Equity  of  executed  consideration. 

§  580.  Licenses  limited  in  time  not  a  surrender  of  the  police  power. 

§  581.  Perpetual  licenses  unreasonable. 

§  582.  Licenses  in  terms  made  revocable. 

CHAPTER    XXVIL 

SOCIAL  AND  ECONOMIC  REFORMS. 

§  583.     In  general. 

The  abolition  of  slavery.     §§  584-586. 

§  584.     Early   legislation. 

§  585.     Legislation  during  the  civil  war  and  the  question  of  compensation. 


XXVI 


CONTENTS. 


§  586.     Constitutioual  aspect  of  abolition. 

Trade  privileges  and  Feudal  rights.     §§  587-588. 

§  5S7.     Class  and  trade  privileges  and  exemptions. 
§  588.     Seignorial  rights. 

Perpetuities  and  mortmain.     §§  589-596. 

§  5S9.  Perpetual  rents. 

§  590.  Perpetual  covenants. 

§  591.  Entails. 

§  59J.  Acts  of  secularisation. 

§  593.  Suppression  of  monastaries  in  England. 

S  .594.  Virginia  legislation. 

§  595.  Pawlet  v.  Clark. 

§  596.  The  Mormon  Church  case. 

Legislative  power  over  eleemosynary  trusts.     §§  597-601. 

5  597.  Eleemosynary  trusts  and  the  Dartmouth  College  doctrine. 

S  598.  Dorfrincs  laid  down  in  Mormon  Church  case. 

§  599.  Effect  of  reserved  power  over  corporate  charter. 

§  600.  Trust  objects  becoming  contrary  to  public  policy. 

S  601.  English  legislation. 

Note — Power  over  eleemosynary  trusts  by  Prussian  law. 

5  60-.  SiHiiiiiary  of  principles  regarding  property  under  the  police  power, 

FUNDAMENTAL  RIGHTS. 

THIRD.     EQUALITY. 

CHAPTER    XX VI II. 

EQUALITV  AS  A  POLITICAL  PRINCIPLE. 

\  603.  Rcicinl  and  natural  inequality. 

1604.  Pi.litical   inequality. 

BOOS.  Equality  in  Kngland. 

I  606.  Equality  in  France. 

I  607.  Kf|iiiility  in  Prussia. 

I  608.  Equality  under  American  state  constitutions. 

I  609.  The  rdnrti-eulh  Ainendineiit  and  the  Slaughter  House  cases. 

I  610.  I'>ju«lity  and   the  equal  protection  of  the  laws. 

J  611.  Equality  and  duo  process  uf  l.iw. 

•HArrKK     XXIX. 

PARTICULAR    I'.rUDKXS. 

|6I'J.     8nbj<'ft  Ht'Wu-i]  to  be  responsible  for  condition  calling   for  burden 

nnd  re»(pon«ibility. 
1613.     rnrtirtilnr  iierviron. 
V.mcTgency  nervicc* 
■i  '  ''    lfnvrltern'  pntrnln. 


CONTENTS.  XXvii 

Dangers  due  to  natural  conditions.     §§    616-620. 

§  616.  At  common  law. 

§  617.  Under  tlie  police  power. 

§  618.  Eeasonableness  of  requirement. 

§  619.  Where  land  not  the  source  of  the  danger. 

§  620.  Cleaning  sidewalks. 

Special  liahility  in  connection  with  hazardous  undertakings.     §§  621-638. 

§  621.  Extension  of  liability  beyond  common  law  principles. 

§  622.  Liability  for  cost  of  official  supervision. 

§  623.  Liability  for  the  cost  of  remedial  measures. 

§  624.  Liability  for  acts  of  persons  employed  under  legal  compulsion. 

§  625.  Ship 's  liability  for  fault  of  pilot. 

§626.  Civil  Damage  acts.     Note — Subcontractors'  liens. 

§  627.  Liens  under  U.  S.  Eevenue  laws. 

§  628.  Dangers  incident  to  the  operation  of  railroads. 

§  629.  Injuring  or  killing  of  cattle. 

§  630.  Fire  started  by  sparks  from  locomotives. 

§  631.  Railroad  crossings. 

§  632.  Injury  to  passengers. 

§  633.  Absolute  liability  for  personal  injuries  under  other  legal  systems. 

§  634.  Constitutionality  of  absolute  liability. 

§  635.  Penal  liability  and  fault,  wrongful  intent  dispensed  with. 

§  636.  Knowledge  presumed. 

§  637.  Penal  liability  of  railroad  companies. 

§  638.  Penalty  corresponding  to  fault. 

CHAPTER    XXX. 

SPECIAL   PRIVILEGES. 

A.    Discriminative  Licenses.     §§  639-655. 

§  639.     Cases  calling  for  discrimination. 

§  640.     Right  to  equality  notwithstanding  liability  to  entire  prohibition. 

Eestrictions  based  on  objective  conditions.     §§  641-645. 

§  641.  Regulations  superseding  administrative  discretion. 

§  642.  License  a  jninisterial  or  a  judicial  act. 

§  643.  Unregulated  discretion :  cases  in  which  held  unconstitutional. 

§  644.  Unregulated  discretion :   cases  in  which  sustained. 

§  645.  Vote  or  consent  of  people  of  locality. 

Professional  qualification.     §§  646-650. 

§  646.  Methods  of  ascertaining  fitness. 

§  647.  Discrimination  in  tests  of  fitness. 

§  648.  Encroachment  upon  judicial  power. 

§  649.  Delegation  of  legislative  power. 

§  650.  Privileges  accompanying  professional  license. 


^..jii  COxNTENTS. 

Qualification   of  character.     §§   651-653. 

§  651.     Administrative  determination. 

§  65'2.     Substitution  of  ministerial  function. 

§  653.     Administrative  discretion  as  regards  business  intrinsically  harmless. 

Judicial  Control.     §§  654-655. 

§  6.54.     Judicial  character  of  discretion. 

S  655.     Federal  protection  against  arbitrary  discretion. 

B.  -Monopolies.    §§  656-681. 

S  656.     Historical  remarks. 

S  657.     American  constitutional  provisions. 

Monopolies  of  necessity    (franchises).     §§   658-662. 

§  658.  Right  to  occupy  highway. 

S  659.  Right  of  condemnation  of  property. 

9  660.  Temporarily  exclusive  right  under  special  legislation. 

9  661.  Canals  and  river  improvements. 

9  662.  Bank  notes. 

Monopolies  to  secure  the  benefit  of  original  production   (authors'  and  in- 
ventors' rights).     §§  663-665, 

9  663.     K(]uity  of  c-xchisive  right. 
9  664.     Kederal  legislation. 
9  665.     Monopoly  character. 

Monopolies  against  common  right.     §§  666-673. 

9  666.  State  monopolies. 

9  667.  Municipal  monopolies. 

9  668.  Private  monopolies  against  common   right.     Ferries. 

9  669.  Mono[>.)ly  as  a  moans  of  police  control.     Slaughter  house  cases. 

9  670.  l.iccnMc,  IcaHc  or  contract. 

9  671,  I'owcT  over  monopolised  business, 

9  672,  Kentrirtion  of  numberH. 

9  673.  K«*Hulting  privilegcH, 

Revocability  of  viouopnlics  and  grant  of  competing  rights.     §§  674-681, 

9  674,  IHMlinguiHhr-<|  from  prohibition  of  biisincHH. 

9  675,  Uni-quivocnl  grant  ttf  oxcluHive  character  required. 

9  676.  Triiu-iplf  of  Hiri«'t  fr)nHtruction  justified. 

9  677.  Hivnl  public  undrrtakingH. 

9  67M,  (^ucntion  of  power  to  make  oxcluHivcnesH  a  niad.r  of  right. 

9  079.  Cmnt  of  rcmp.-ting  right  an  impairing  the  obligation  of  contracts. 

9  6HO.  I.<Miiiiinnn  Hlaii^»ht<.r  ITr.nHc  and  (ias  Company  cases. 

9  6NI,  lVr|K-tual  monopolicH  and  monopolies  limited   in  time. 


CONTENTS  xxix 

CHAPTER    XXXI. 

CLASSIFICATION    AND    DISCEIMINATION. 

§  682.     Statement  of  problem. 

A.     Discrimination  Based  on   Time.     Exceptions  in   Favor  of  Exist- 
ing Conditions.     §§  683-687. 

§  683.  1.     Where  new  measure  amounts  merely  to  regulation. 

§  684.  Exemption  of  established  practitioners. 

§  685.  2.     Where  new  regulation  is  destructive  of  vested  interests. 

§  686.  3.     Where  new  measure  amounts  to  prohibition. 

§  687.  Exception  in  favor  of  existing  rights. 

B.     Discrimination   Between  Localities.     §§   688-690. 

§  688.     Constitutional   provisions. 

§  689.     Discrimination  in  location  of  noxious  establishments. 

§  690.     Discrimination  to  be  justified  by  local  conditions. 

C.     Discrimination  Based  on  Personal  Status.     §§  691-720. 

Baee.    §§  691-700. 

§  691.  Indians,  Chinese  and  free  negroes  before  the  Fourteenth  Amend- 
ment. 

§  692.  Fourteenth  Amendment. 

§  693.  Federal  civil  rights  legislation. 

§  694.  State   legislation   forbidding   discrimination. 

§  695.  Discrimination  apart  from  statute. 

§  696.  Compulsory  separation. 

§  697.  a.     Miscegenation. 

§  698,  b.     Education. 

§  699.  c.     Separation  in  public  conveyances. 

§  700.  Segregation  and  equality.  , 

Sex.     §§  701-703. 

§  701.     Civil  and  political  status. 

§  702.     Status  under  the  police  power. 

§  703.     Employment  of  women  in  the  liquor  business. 

Aliens.     §§  704-707. 

§  704.  Power  of  the  United  States. 

§  705.  Power  of  the  states. 

§  706.  Equal  protection  and  equal  capacity. 

§  707.  Resident  and  non-resident  aliens. 

Non-residents.     §§  708-712, 

§  708.     Citizens  of  other  states. 

§  709,     Non-resident  U.  S.  citizens. 


I 


XXX 


CONTENTS. 


§  710,  Non-residence  relevant  for  police  purposes. 

§  711.  Practice  of  medicine,  &c. 

5  71:2.  Proprietary  resources  of  state. 

Corporations.     §§  713-715. 

§  713.  Irregularities  due  to  special  charters. 

§  714.  Discrimination  in  administration  of  justice. 

§  715.  Corporate  capacity  and  vested  rights. 

Foreign  corporations.     §§  716-720. 

§  716.  Foreign  corporations  not  engaged  in  commerce. 

§  717.  Foreign  corporations  engaged  in  commerce. 

§  718.  Exercising  corporate  powers  within  state. 

§  719.  Foreign  railroad  companies. 

§  720.  Fixed  corporate  property  within  the  state. 

I).     DiscRiMiN.\TioN  Based  on  Difference  of  Acts  and  Occupations. 

§§  721-738. 

9  721.  Police  power  may  single  out  particular  evils. 

S  7l'2.  Police  power  may  single  out  one  side  of  a  relation. 

S  723.  Discrimination  between  similar  evils. 

S  724.  Abstract  classification  according  to  degree  of  danger. 

§  725.  Classification  by  social  or  economic  groups. 

i  726.  Synopsis  of  decisions. 

i  I'll.  lA'gislation  for  the  prevention  of  accidents. 

9  728.  Sanitary  legislation. 

9  729.  Public  order. 

9  73').  I,c;jislati<in   against  gambling. 

9  731.  l-i-^islafioii  against  fraud. 

9  732.  Licensing  occupations. 

9  733.  Hcgidation  of  rates  and  charges. 

9  7.*M.  Anti  trust   legislation. 

9  735.  Lalmr  logJHhition. 

9  736.  I'rincipicH  deducible  from  decisions. 

9  737.  KyMtematic    legislation. 

9  73M.  Formation  of  principle. 


TABLE  OP  CASES  CITED. 


[references  are  to  sections.] 


Abeei    V.    Clark,    84    Cal.    226, 

24  Pac.  383 447 

Acton  V.  Blundell,  12  M.  &  W. 

324    425 

Adams  v,  Brennan,  177  111.  194, 

52  N.  E.  314,  42  L.  E.  A.  718, 

69  Am.  St.  Eep.  222 673 

Adams  v.  Cronin,  29  Colo.  488, 

69   Pac.   590 = 703 

Adams   v.   Hackett,    27    N.    H. 

289,  59  Am.  Dec.  376 564 

Addyston  Pipe  and  Steel  Com- 
pany V.  United  States,  175  U. 

S.  211,  20  Sup.  Ct.  Rep.  96..79,  341 
Adler  v.  Whitbeck,  44  Oh.  St. 

539,  9  N.  E.  672 37 

Aetna    Insurance    Company    v. 

Commonwealth,   21    Ky.   Law, 

Rep.  503,  45  L.  R.  A.  355 340 

African  M.  E.  Church  v.  New 

Orleans,  15  La.  Ann.  441....  691 
Ah  Lit,  Ex  parte,  26  Fed.  512..  455 
Albany  etc.  R.  Co.  v.  Brownell, 

24   N.   Y.   345 631 

Albrecht  v.  People,  78  111.  510 

454 

Albright    v.    Cortright,    64    N. 

J.  L.  330,  45   Atl.  634,  48   L. 

E.   A.    616,   81    Am.    St.   Eep. 

504     418,419 

Alden    v.    St.    Peter's    Parish 

Church,  158  111.  631,  42  N.  E. 

392,  30  L.  E.   A.   232 466 

Aldrich   v.   Metropolitan   West 

Side    Elevated    E.    Company, 

195  111.  456,  63  N.  E.  155,  57 

L.    E.    A.    237 510 

Aldrich    v.    Wright,    53    N.    H. 

398,   16   Am.   Eep.   339 419 


Alexander  v.  Greenville,  54 
Miss.    659 141 

Alexander  W.  and  K.  Ferry 
Co.  V.  Wisch,  73  Mo.  655,  39 
Am.    Rep.    535 668 

Alexandria  Ferry  Co.  v.  Wisch, 
73  Mo.  655,  39  Am.  Rep.  53p..  668 

Allardt  v.  The  People  of  the 
State  of  Illinois,  197  111.  501, 
64   N.    E.   533 61 

Alleghany  v.  Zimmerman,  95 
Pa.  287,  40  Am.  Eep.  649 162 

Allen  V.  Boston,  159  Mass.  324, 
34  N.  E.  519,  38  Am.  St.  Eep. 
423     161 

Allen  V.  Flood,  L.  E.  1898,  A. 
C.   1    334 

Allen  V.  McKeen,  1  Sumn.  276, 
1  Fed.   Cas.  489 599 

Allen  V.  Sackrider,  37  N.  Y. 
341     388 

Allen  V.  Stevens,  161  N.  Y. 
122,  55  N.  E.  568 369 

Allgeyer  v.  Louisiana,  165  U. 
S.  578,  17  Sup.  Ct.  Eep.  427..  716 

Allnutt  v.  Inglis,  12  East.  527..  377 

Allopathic  State  Board  of 
Medical  Examiners  v.  Fowl- 
er, 50  La.  Ann.  1358,  24  Sou. 
809     153,647 

Allstock  v.  Page,  77  Va.  386...  209 

Altenburg  v.  Commonwealth, 
126  Pa.  St.  602,  17  Atl.  799, 
4  L.  E.  A.  543 454 

American  Express  Co.  v.  Peo- 
ple, 133  111.  649,  24  N.  E.  758, 
9  L.  E.  A.  138,  23  Am.  St. 
Eep.    641 419 

American  Live  Stock  Commis- 


XXXI 


xxxu 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


sion  Co.  V.  Chicago  Live 
Stock  Exchange,  143  111.  210, 
32    N.    E.    274,    18    L.    R.    A. 

190     345,389 

American  Print  Works  v.  Law- 
rence,   3    Zabr.    (X.    J.)    590, 

57   Am.   Doc.  420 534 

American  Rapid  Telegraph  Co. 
V.  Hess,  125  N.  Y.  641,  26 
N.    E.   919,   13   L.   R.   A.   454, 

21   Am.  St.   Rep.   764 362 

American    Steel    House    Co.    v. 
Willcox,  38  Miscellaneous  Rep. 
571,  77  N.  Y.  Supp.  1010....   670 
Amnion    v.    Newton.    50    N.    J. 

L.   543,   14   Atl.   610 32 

Anderson   v.  Brewster,   44   Oh. 

St.  576,  9   N.   E.  683 37 

Anderson    v.    Locke,    64    Miss. 

283,   1   So.   251 168 

Anilerson  v.  United  States, 
171    IT.    S.    604,    19    Sup.    Ct. 

Rep.    50 341,345 

Anderson     v.     Wellington,     40 

Kan.    173,    19   Pac.    719,   2   L. 

R.    A.    110,    10    Am.    St.    Rep. 

175  174,468,480,643 

Andrews,    Ex     parte,     18    Cal. 

678    185 

Andrews  v.  T'nited  States,  162 

r.    8.   420,    16    Sup.    Ct.    Rep. 

798    236,  453 

Andrews  v.  Wightman,  29  Fed. 

fi.lfl    236 

A|>plir'Hti(in     to     Admission     to 

I'mrticp,  In  Re,   It  S.  1).  429, 

R.'S    ,V.    W.    992 543 

Archer    v.    Baltimore    Building 

4    Loan    AMmiriaf i(in,    45    W. 

Vn.  37.  .10  S.  K.  327 304 

ArcntiLc-rg,  Ponpln  of  State  of 

New   York   v.,   105  N.   Y.   123, 

11    N.    E.   277,    59    Am.    Rep. 

483     49 

AfKentine,  City  of  v.  Atrhiaon, 

T.  and  R.   V.  R.  Co.,  55   Kan. 

7.10,  41   I'nc.  946,  30  L.  R.  A. 

255    548,631 


Arimond    v.    Green    Bay    etc. 

Co.,   31   Wis.   316 409 

Arkadelphia,       Town       of       v. 

Clark,   52   Ark.   23,    11    S.  W. 

957,  20  Am.  St.  Rep.  154....33,  141 
Arms  V.  Ayer,  192  111.  601,  61 

N.   E.   851,   85   Am.   St.    Rep. 

357     34 

Armstrong      v.      Murphy,      65 

Appl.  Div.   (N.  Y.)   123,  72  N. 

Y.   Suppl.   473 251,652 

Armstrong     v.      Treasurer     of 

Athens  Co.,   16  Pet.   281 568 

Arnot    V.    Pittston    &    Elmira 

Coal    Co.,   68    N.    Y.    558,    23 

Am.  Rep.   190 347 

Arthur    v.    Craig,    48    la.    264, 

30  Am.  Rep.  395 105 

Arthur  v.  Cakes,  63  Fed.  310, 

25  L.  R.  A.  414,  24  U.  S.  App. 

239,  11  C.  C.  A.  209 450,  452 

Ash    V.   The   People,    11    Mich. 

347,   83   Am.   Dec.   740 38 

Ashbrook  v.   Commonwealth,  1 

Bush.  (Ky.)  139,  89  Am.  Dec. 

61G     176,529 

Asher  v.  Texas,  128  U.  S.  129, 

9  Sup.  Ct.  Rep.  1 295 

Atchison     v.     Lucas,     83     Ky. 

451 701 

Atchison  v.  Peterson,  20  Wall. 

507    414 

Atchison   and   Nebraska   R.    Co. 

V,  Baty,  6   Neb.   37 637 

Atchison    St.    R.    Co.    v.    Mis- 
souri Pacific  R.  Co.,  31  Kan. 

660,   3   Pac.   284 658 

Atchison,   Topcka   &   Santa   Fe 

R.    R.    Co.    V.    Campbell,    61 

Kan.  439,  59  Pac.  322,  48  L. 

R.    A.    251,    78    Am.   St.    Rep. 

328    394 

Atchison,  Tojieka  &  Santa  Fe 

R.  Co.  V.  Denver  &  N.  O.  R. 

Co.,  110  IT.  S.  667,  4  Sup.  Ct. 

Rep.    185 397 

Atcliison,   Topeka     and     Santa 
IV    R.    To.    V.    Matthews,    174 


TABLE  OF  CASES  CITED. 


XXXlll 


[references  are  to  sections.] 


U.    S.    96,    19    Sup.    Ct.    Eep. 
609 300,  610,  637,  727,736 

Atkiu  V.  Kansas,  191  U.  S.  207..  310 

Atkins  V.  Atkins,  18  Neb. 
474,    25    N.    W.    724 709 

Atlantic,  City  of  v.  Turner,  67 
N.  J.  L.  520,  51  Atl.  691 41 

Attorney  General  v.  Abbott, 
121  Mich.  540,  80  N.  W.  372, 
47  L.  E.  A.  92 701 

Attorney  General  v.  Metropol- 
itan E.  Co.,  125  Mass.  515, 
28    Am.    Eep.    264 576 

Attorney  General  v.  Old  Col- 
ony E.  Co.,  160  Mass.  62,  35 
N.  E.  252,  22  L.  E.  A.   112..   397 

Attorney  General  v.  Tongue, 
12  Price  51 288 

Attorney  General  v.  Williams 
et  al.,  174  Mass.  476,  55  N. 
E.   77    23,180,514 

Attorney  General  ex  rel.  Du- 
senbury  v.  Looker,  111  Mich. 
498,  69  N.  W.  929,  56  "L.  E. 
A.    947 363 

Augusta,  City  Council  of  v, 
Burum,  93  Ga.  68,  19  S.  E. 
820,  26  L.  E.  A.  340 163,  581 

Augusta  and  S.  E.  Co.  v.  Ean- 
dall,  79  Ga.  304,  4  S.  E.  165..  628 

Austerberry  v.  Corporation  of 
Oldham,  L.  E.  29  Ch.  D.  750, 
784    372 

Austin  V.  Avigusta  Terminal  E. 
Co.,  108  Ga.  671,  34  S.  E.  852, 
47   L.   E.   A.    755 510 

Austin  V.  State,  22  Ind.  App. 
221,  53  N.  E.  481 454 

Austin  V.  State,  110  Tennessee 
563,  50  L.  E.  A.  478 129 

Austin  V.  Tennessee,  179  U. 
S.  343,  21  Sup.  Ct.  Eep.  132 
81,  84,  134,  137,  145,  295 

Avent-Beattyville  Coal  Com- 
pany V.  Commonwealth,  96 
Ky.  218,  16  Ky.  Law  Eep. 
414,  28  S.  W.  502,  28  L.  E. 
A.    273 319 


Avis  V.  Borough  of  Vineland, 
56  N.  J.  L.  474,  28  Atl.  1039, 
22    L.   E.   A.   685 610 

Ayres  v.  Chicago  &  North- 
western E.  Co.,  71  Wis.  372, 
37  N.  W.  432,  5  Am.  St.  Eep. 
226    387 

Ayres  v.  Eichards,  38  Mich. 
214    427 

Babcock  v.  Buffalo,  56  N.  Y. 
268   525 

Bacon  v.  Wayne  Co.,  1  Mich. 
461   613 

Bailey  v.  Master  Plumbers' 
Association  of  Memphis,  103 
Tenn.  99,  52  S.  W.  853,  46 
L.  E.  A.  561 344 

Bailey  v.  The  People  of  the 
State  of  Illinois,  190  111.  28, 
60  N.  E.  98,  54  L.  E.  A.  838, 
83   Am.   St.  Eep.   116.  .46,  728,  737 

Bailey  v.  Phildelphia  W.  and 
B.  E.  Co.,  4  Harr.  (Del.)  389, 
44  Am.  Dec.  593 576 

Baker,  Ee,  29  How.  Pr.  486...   227 

Baker    v.    City    of    Cincinnati, 

11  Oh.  St.  534,   80   Am.  Dec. 
375     37,250 

Baker  v.  Normal,  81  111.  108..   164 
Baker    v.    State,    54    Wis.    368, 

12  N.  W.  12 731 

Ball  V.  Herbert,  3  Term  Eep. 

253     409 

Ballance  v.  Peoria,  180  111.  29, 
54    N.    E.    428 404 

Ballard  v.  Mississippi  Cotton 
Oil  Co.  (Miss.),  34  Sou.  533..   715 

Ballentine  v.  North  Missouri 
E.  E.  Co.,  40  Mo.  491,  93  Am. 
Dec.    315 387 

Ballock  V.  State,  73  Md.  1, 
20  Atl.  184,  8  L.  E.  A.  671, 
25   Am.   St.  Eep.   559 198 

Baltimore  v.  Eadecke,  49  Md. 
217,  33  Am.  Eep.  239 643 

Baltimore  and  O.  S.  W.  E. 
Co.  V.  State  ex  rel.  Green- 
wood (Ind.),  65  N.  E.  508....  631 


XXXIV 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Baltimore  and  Ohio  R.  Co.  v. 
Kreager,  61  Ob.  St.  312,  56 
N.   E.    203 630 

Bancroft  v.  Cambridge,  126 
Mass.  438    518,617 

Bank  of  Columbia  v.  Okely,  4 
Wheaton    235 20 

Bank  of  Commerce  v.  Tennes- 
see, Use  of  City  of  Memphis, 
163  U.  S.  416,  16  Sup.  Ct.  Eep. 
1113    568 

Banks,  In  re,  56  Kans.  242, 
42  Pac.  693 472 

Banta  v.  City  of  Chicago,  172 
111.  204,  50  N.  E.  233,  40  L. 
R.   A.   611 37 

Rarbier  v.  Connolly,  113  U.  S. 
27,  5  Sup.  Ct.  Rep.  433 690 

Barclay  v.  Pearson,  L.  R. 
1893  2  Ch.  154 198 

Bardon  v.  Montana  Club,  10 
Mont.  330,  25  Pac.  1042,  11 
L.  R.  A.  593,  24  Am.  St,  Rep. 
17    456 

Bardwell  v.  Mann,  46  Minn. 
285,  48  X.  W.  1120 626 

Barnes  v.  Barnes,  8  Jones  L. 
(N.  C.)    366 557 

Barnett  v.  Atlantic  and  Pacific 
R.  Co.,  68  Mo.  56,  30  Am. 
Rep.    773 637 

Barney  v.  Tlic  D.  R.  Martin, 
11  Blati-hf.  2:53,  Fed.  r'as.  No. 
1030    386 

Barney  v.  Keokuk,  94  IT.  S. 
324    160 

Barnoy  v.  Oyster  liay  and 
Huntington  Steamboat  Co.,  67 
N.  Y.  .301,  23  Am.  Hep.  115.  .   395 

Barrows  v.  McDermott,  73  Me. 
441    518 

Bartcmoyor  v.  Iowa,   18   Wall. 

129    539 

Bjirtlwt    V.    Now    OrloauH,    24 

Fnd.    561 643 

Bnrtlott  V.  Grand  Rapids 
Slrrct  R.  Co.,  82  Mich.  658,  46 
N.  W.  1034 316 


Bass  V.  The  State,  34  La.  Ann. 

494    409 

Batters   v.   Dunning,   49    Conn. 

479 651 

Baylies  v.  Curry,  128  111.  287, 

21  N.  E.  595 389,  694,  695 

Beadles  v.  Bless,  27  111.  320,  81 

Am.  Dec.  231 195 

Beardsley  v.  New  York,  Lake 

Erie    &   Western    R.    Co.,    162 

N.  Y.  230,  56  N.  E.  488 393 

Beck    V.    Railway    Teamsters' 

Protective    Union,    118    Mich. 

497,  77  N.  W.  13,  42  L.  R.  A. 

407,  74  Am.  St.  Rep.  421 333 

Bedford,  Duke  of,   v.   Trustees 

of  British  Museum,  2  Myl.  & 

K.    552    590 

Bedore    v.   Newton,    54    N.    H. 

117    626 

Beebe  v.  The  State,  6  Ind.  501, 

63  Am.  Dec.  391.  .59,  213,  214,  218 
Beer  Company  v.  Massachu- 
setts, 97  U.  S.  25 24,  362,  564 

Beha    v.    State    (Neb.),    93    N. 

W.    155 284 

Belling  v.  Evansville,  144  Ind. 

644,  42  N.  E.  621,  35  L.  R.  A. 

272    141,   530,  641 

Bell  V.  Quebec,   L.   R.   5   App. 

C.    84 408 

Bennett   v,   Bennett,   13    N.   J. 

Eq.    114 260 

Bennett    v.    Dutton,   10   N.   H. 

481    388 

Bennett  v.  Harms,  51  Wis.  251, 

8  N.  W.  22 709 

Bennett   v.   The  Mayor  etc.  of 

Town   of   Pulaski   (Tenn.),   52 

S.  W.  913,  47  L.  R.  A.  278..  52 
Bent  V.  Emory,  173  Mass.  495, 

53    N.    E.    910 .508,518 

Bergman   v.   Cleveland,  39   Oh, 

St.    651 703 

Bortholf  V.  O'Reilly,  74  N.  Y. 

509,  30  Am.  Rep.  323 20,  626 

Bertonneau  v.  Board  of  Direct- 
ors, 3  Woods  177 698 


TABLE  OF  CASES  CITED. 


XXXV 


[references  are  to  sections.] 


201 
133 


629 


32 

250 


Bessette  v.  People,  193  111.  334, 
62  N.  E,  215,  56  L.  E.  A.  558 

493,  497,   646,  688 

Bessonies    v.    City    of    Indian- 
apolis, 71  Ind.  189..33,  38,  141,  643 

Betts  V.  State,  93  Ind.  375 245 

Beynian  v.  Black,  47  Tex.  558.      20 
Bibb   V.   Allen,   149  U.   S.  481, 

13   Sup.   Ct.   Eep.   950 

Bibber  v.  Simpson,  59  Me.  181.. 
Bielenberg    v.    Montana    Union 

Ry.  Co.,  8  Mont.  271,  20  Pac. 

314,  2  L.  R.  A.  813 

Biesecker,  People  v.,  169  N.  Y. 

50,  61  N.  E.  990,  57  L.  R.  A. 

178    

Billis  V.  Burghall,  2  Esp.  722. 
Billmeyer  v.  Evans,  40  Pa.  St. 

321    557 

Binghamton     Bridge,     3     Wall. 

51    363,  577,   675,  679 

Birdsall  v.  Twenty-third  Street 

R.  Co.,  8  Daly  (N.  Y.)  419...    323 
Birmingham  Mineral  R.  Co.  v. 

Parsons,   100  Ala.  662,   13  So. 

602,  46  Am.  St.  Rep.  92 629 

Bisbee    v.    McAIlen,    39    Minn. 

143,  39  N.  W.  299 274 

Bishop    V.    American     Preserv- 
ers' Co.,  157  111.  284,  41  N.  E. 

611    

Bishop   Auckland   Local   Board 

V.  Bishop  Auckland  Iron  and 

Steel  Co.  Ltd.,  L.  R.  10  Q.  B. 

D.    138    

Bissell    V.    Davison,     65     Conn. 

183,  32   Atl.  348,  65  L.  R.  A. 

183    447 

Bissell  V.  Heath,  98  Mich.  472, 

57  N.  W.  585 567 

Blaekwell  v.  Old  Colony  R.  Co., 

122   Mass.   1 408 

Blades  v.  Higgs,   11  House  of 

Lords  Cases,  621 418 

Blair   v.    Forehand,    100    Mass. 

136,  1  Am.  Rep.  94 526 

Blair    v.    Kilpatrick,    40    Ind. 
312    640,703 


353 


176 


163 

90 
566 

418 


Blair  v.  Williams,  4  Littell  34.   558 
Blake   v.   McClung,    172    U.    S. 

239,  19  Sup.  Ct.  Rep.  165....  709 
Blaxton  v.  Pye,  2  Wils.  309....  194 
Blewitt,  Re,  131  N.  Y.  451,  30 

N.    E.    587 252 

Bliss,  Ex  parte,  63  N.  H.  135.  .   710 

Bliss  V.  Ball,  99  Mass.  597 

Bliss  V.  Commonwealth,  2  Lit- 
tell (Ky.)  90,  13  Am.  Dec.  251. 

Bloom  V.  State,  20  Ga.  443 

Blount  V.   Layard,  L.   R.   1891, 

2  Ch.  681    

Blue  V.  Beach,  155  Ind.  121,  56 
N.  E.  89,  50  L.  R.  A.  64....   447 

Blythe  v.  State,  4  Ind.  525 613 

Board   of   Education   v.   Minor, 
23   Oh.   St.   211,   13   Am.   Rep. 

233   

Board    of    Police    Commission- 
ers V.  Wagner,  93  Md.  182,  48 

Atl.    455 

Bohen,  Ex  parte,   115  Cal.   372, 

47  Pac.  55,  36  L.  R.  A.  618.. 

Bohn     Manufacturing     Co.     v. 

W.  G.  Hollis,  54  Minn.  223,  55 

N.  W.  1119,  40  Am.  St.  Rep. 

319   

Boom  Co.  V.  Paterson,  98  U.  S. 

403   506 

Booth  V.  Illinois,  184  U.  S.  425, 

22  Sup.  Ct.  Rep.  425.  .59,  201,  730 
Booth   V.   People   of  the   State 
of  Illinois,   186  111.  43,  57  N, 
E.    798,    50   L.   R.   A.    762,    78 
Am.  St.  Rep.  229n.59,  201,  730,  737 
Bostock  V.   Sams,   95   Md.   400, 

52   Atl.   665 

Boston    V.    Schaffer    et    al.,    9 
Pick.    415,    19    Am.    Dec.    332 

37, 

Boston    and   Albany    R.    Co.    v. 

Brown,  177  Mass.  65,  58  N.  E. 

189,  52  L.  R.   A.  418 

Boston   and   Albany   R.   Co.   v. 

Cambridge,  159  Mass.  283,  34 

N.    E.    382 

Boston   and   Albany  R.   Co.   v. 


463 


526 


687 


345 


181 


250 


396 


631 


XXXVl 


TABLE  OF  CASES  CITED. 


[refebexces  are  to  sections.] 
Countv      Commissioners,      116 


Mass.    73 631 

Boston    and    Maine    E,    Co.    v. 

County       Commissioners,      79 

Me.  3S6,  10  Atl.  113 397,  631 

Boston  and  Boxbury  Mill  Cor- 
poration  V.   Newman,   12  Pick. 

467,  23  Am.  Dee.  622 412 

Bottoms  V.  Brewer,  54  Ala.  288  412 
Boutwell    V.    Marr,    71    Vt.    1, 

42   Atl.  607,  43  L.  R.  A.  803, 

76  Am.  St.  Rep.  746 344 

Bowditch  V.  Boston,  101  U.  S. 

16    534 

Bowe  V.  State,  25  Ind.  415...  191 
Bowen   v.    Hall,   L.   R.   6   Q.   B. 

D.    333 333 

Bowie  V.  Birmingham  Railway 

Co.,  125  Ala.  397,  27  So.  1016, 

50   L.   R.   A.   632,   82   Am.   St. 

Rep.    247 695 

Bowliii  V.  Lyon,  67  Li.  536,  25 

N.   W.   766,  56   Am.   Rep.   355 

388,    695 

Bowman  v.  Chicago  and  Xorth- 

wcstfTii      Railway      Company, 

125  V.  S.  465,  8  Sup.  Ct.  Rep. 

689,    1062 74,  76,  80,  82,  83,  231 

Boyd,  State  v.,  63  Neb.  829,  89 

N.  W.  417,  58  L.  n.  A.  loH.  ..  37 
Boyd  V,  Alabama,  94  U.  S.  645  503 

Boyd  V.  Stato,  46  Ala.  329 503 

Boyd  V.  United  StatoH,  110  U. 

H.   616    44 

BrrKoville     Coal     Company     v. 

r.oplp,   147    III.   66,   35   N.   E. 

62,  22   L.   R.   A.   340,   37   Am. 

8t.  Hop.  206 320,502,715,735 

Brfiddy    V.   City    of     Milb-dge- 

vilb',  74  CSa.  516,  58  Am.  Rep. 

443    <(<» 

BrndlnuKh    v.    R.-g,    L.    R.    3    (}. 

B.    I).    607 Ii:i7 

T'rndlpy  v.   Pipmon,  148  Pa.  St. 

S02.  24  Atl.  65 327 

hrndwxil,  Ho,  r,r,  III.  r,:\ri 702 

Hmdwoll    V.    Illinnin,    10    Wnll. 

130    7()o    7f)i! 


Brady    v.    McArgle,    14    L.    R. 

(Ireland)     174 249 

Bragg  V.  People,  78  111.  328.  . .  566 
Bragg  V.  State  (Ala.),  58  L.  R. 

\\.  925,  32  Sou.  767 133 

Branson  v.  Philadelphia,  47  Pa. 

St.    329 556 

Brass  V.  North  Dakota,  ex  rel. 

Stoeser,  153  U.  S.  391,  14  Sup. 

Ct.  Rep.   857 376,  394 

Brewster   v.   Hough,    10   N.  H. 

138   568 

Brewster  v.  J.  &  J.  Rogers  Co., 

169  N.  Y.  73,  62  N.  E.  164.  . .  413 
Breyer  v.  State,  102  Tenn.  103, 

50    S.   W.   769 735 

Brick    Presbyterian    Church    v. 

Mayor,  5  Cow.  538 565 

Brigham   v.    Edmands,    7   Gray 

359    508 

Brightman    v.    Bristol,    05    Me. 

426,  20  Am.  Rep.  711 525 

Brim  v.  Jones,  11  Utah  200,  39 

Pac.  825,  29  L.  R.  A.  97 634 

i'-riruiner  v.  Rehmnu,  138  U.  S. 

78,  11  Sup.  Ct.  Rej).  213.. ..77,  138 
Briscoe  v.  Bank  of  Common- 
wealth   of   Kentucky,    11    Pet. 

257    '. 


662 
401 


Bristol  V.  Barker,  14  Johns 
205    

Broadway  etc.  Ferry  Co.  v. 
Haukcv.    31    Md.    346 668 

Hrodliiiic  V.  Inhabitants  of  Re- 
vere (Mass.),  66  N.  E.  607...    171 

P.ronson  v.  Rodos,  7  Wall.  229 
308,  559 

Hrook.'  V.  i'liiladelphia,  162  Pa. 
St.  123,  29  Atl.  387,  24  L.  R. 
A.   /81 .548,631 

Brooklyn  v.  Nodine,  26  Hun. 
•">12    168 

BrookH  V.  ("odar  Brooks  and  S. 
<'.  R.  Tmprovcinont  Co.,  82 
Mo.  17,  19  Afl.  87,  7  L.  R.  A. 
400,  17  Am.  St.   Rep.  4.59 409 

Brongliton  v.  Singleton,  2  Nott 
&   Mcf;.   (.S.  C.)   .388 418 


TABLE  OF  CASES  CITED. 


XXXVll 


[references  are  to  sections.] 


Brown  et  al.  v.  Houston,  Col- 
lector et  al.,  114  U.  S.  622,  5 
Sup.  Ct.  Eep.  1091 81 

Brown  v.  Hummel,  6  Pa.  St. 
86,  47  Am.  Dec.  431 361 

Brown  v.  New  York  Central 
&  Hudson  River  E.  Co.,  75 
Hun  355,  27  N.  Y.  Supp.  1126.   396 

Brown  v.  Perkins,  12  Gray  89.   526 

Brown  v.  State,  82  Ga.  224,  7 
S.  E.   915 564 

Brown  et  al.  v.  State  of  Mary- 
land,   12    Wheat.   419 

63,  p.  58,  74,  81,  230,  295 

Brown  v.  Walker,  161  U.  S. 
591,  16  Sup.  Ct.  Rep.  644.  .54,  p.  48 

Brown  v.  Weaver,  76  Miss.  7, 
23  So.  388,  42  L.  R.  A.  423,  71 
Am.  St.  Rep.  512 445 

Brown  &  Allen  v.  Jacobs  Phar- 
macy Co.,  115  Ga.  429,  41  S. 
E.  553,  57  L.  R.  A.  547,  90 
Am.   St.   Rep.   126 345 

Brua's  Appeal,  55  Pa.  294.  ..  .   200 

Bryan  v.  Lewis,  Ry.  and  M. 
386   200 

Buccleuch,  Duke  of,  v.  Board 
&c.,  L.  R.  5  H.  L.  418 408 

Budd  v.  New  York,  143  U.  S. 

517,  12  Sup.  Ct.  Rep.  468 

93,  376,  382,  394,  497,  688 

Budd  v.  State,  3  Humph.  483, 
39  Am.  Dec.   189 731 

Buell  v.   State,   45  Ark.   336...      96 

Buffalo  v.  Buffalo  Gas  Co.,  80 
App.  Div.  505,  80  N.  Y.  Suppl. 
1093     394 

Buffalo  V.  Chadeayne,  134  N. 
Y.   163,  31  N.  E.  443 538,  565 

Buffalo  v.  Collins  etc.  Co.,  39 
App.  Div.  342,  57  N.  Y.  Suppl. 
347     275 

Buffalo  East  Side  Street  R.  Co. 
v.  Buffalo  Street  R.  Co.,  Ill 
N.  Y.  132,  19  N,  E.  63,  2  L. 
R.   A.   381 556 

Buffington     v.     Grbsvenor,     46 


Kan.   730,  27   Pac.   137,   13   L. 

R.  A.  283 70<» 

Bulling   v.   Frost,    1    Ksp.   235..    195 

Burdick  v.  The  Peoj)lc  of  the 
State  of  Illinois,  149  111.  600, 
36  N.  E.  948,  24  L.  R.  A.  152, 
41  Am.  St.  Rep.  329 61,  2:;  I 

Burgess  v.  Sims  Drug  Co.,  114 
Iowa  275,  86  N.  W.  307,  54 
L.    R.    A.    364 624 

Burlington  &  H.  C.  Ferry  Co. 
v.  Davis,  48  la.  133,  30  Am. 
St.   Rep.    390 678 

Burlington  v.  Burlington  St.  R. 
Co.,  49  Iowa  144,  31  Am.  Rep. 
145   576 

Burlington  C.  R.  and  N.  Ry. 
Co.  v.  Dey,  82  la.  312,  48  N. 
W.  98,  31  Am.  St.  Rep.  477, 
12  L.  R.  A.  436 394 

Burnham  v.  Thompson,  35  la. 
421    412 

Matter  of  Burns,  155  N.  Y.  23, 
49  N.  E.  246   413 

Burns  v.  State,  48  Ala.  195,  17 
Am.  Rep.  34   i;97 

Busbee  v.  Commissioners  of 
Wake  County,  93  N.  C.  143..   444 

Bussy  V.  Donaldson,  4  Dall. 
206    625 

Butchers'  Union  Slaughter- 
House  Co.  v.  Crescent  City 
Live-Stock  Landing  Co.,  Ill 
U.  S.  746,  4  Sup.  Ct.  Rep.  652 
577,   671,   679 

Butler  V.  Chambers,  36  Minn. 
69,  30  N.  W.  308 62,283 

Butler  v.  Pennsylvania,  10 
now\   402 579 

Butler  v.  State,  97  Ind.  373.  .  .    108 

Byers  and  Davis  v.  Common- 
wealth,  42   Pa.   St.   89 96 

Byrd,  Ex  parte,  84  Ala.  17,  4 
Sou.  397,  5  Am.  St.  Rep.  328 
641,    667 

Cadell  V.  Palmer,  1  CI.  &  F. 
372   367 

Ca dwell  V.  State,  17  Conn.  467  245 


XXXVlll 


T-\BLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Cairo,  St.  Louis  K.  Co.  v.  Peo- 
ple,  92    111.   97,   34   Am.    Rep. 

11:,'    637 

Caldcr  V.  Kurby,  5  Gray  597..  564 
Caldwell   v.   Alton,   33   111.   416, 

So  Am.   Dee.   282 667 

Callagban     v.     Society     Prev. 

Cruelty  to  Animals,  16  L.  R. 

(Ireland)    235    249 

Callanan  v.   Oilman,  107  N.  Y. 

30O,  14  N.  E.  264,  1  Am.  Rep. 

831    172 

Cullender     v.     Marsh,     1     Pick. 

417    510,  509 

Cambridge     v.      Trelegan,      181 

Mass.  565.  64  X.  K.  204 565 

Campbell,  Ex  parte,  74  Cal.  20, 

15    Pa.-.   318,   5    .\m.    St.   Rep. 

41S    216 

Campaii    v.    Langley,   39   Mich. 

451,  33  .\m.  Hep.  41ln 168,  526 

Camjiliell  v.  District  of  Co- 
lumbia, 19  .\pp.  D.  C.  131 522 

Campbell   v.    Evans,   45    N.   Y. 

356   168 

('amiil»ellHburg,      <'ity      of      v. 

Odowalt,  24   Ky.  L.  Rep.  1717, 

1739,  72  S.  W.  314 626 

^'iinadn   Roufli<>rn    R.   Co.    v.    In- 

ti-nintional    Hridge    Co.,    Tv.    R. 

«  App.  Cns.  723 552 

J'annI   AppraiKcrH  v.   People,   17 

Wend.   571 408 

'     •  Ml      City     Dairy     Co.     v. 
'.   1«3   li.  8.  238,  22  Sup. 

Ct.   Rop.   120 731 

Cnrdwel!    v,    American    Piridpc 
'■■.    113    V.    S.     205.     5 


-123. 


ill  Co.  V.  MinneHotn,  180 
I'.    K.    452,    21    Sup.    Ct.    Rep. 

297,493 

•   Ti   V.                -r  Aln.  17,  4   Ti. 
If    A.  :.  ,.  lis oo| 

on  V,  Rt.  LouIh  River 
Dnm  nml  Tmprovnment  Co., 
"     "  "2H,  75  N.  W.  1044, 


41  L.  R.  A.  371,   72  Am.  St. 
Rep.    610 410 

Carrol  v.  Olmsted,  16  Oh.  251.  .   590 

Carroll  v.  Campbell,  108  Mo. 
550,  17  S.  W.  884 668,  678 

Carson  v.  Blazer,  2  Biun.  (Pa.) 
475,   4   Am.   Dec.   463 418 

Carson  v.  Stale,  69  Ala.  235. ..  223 

Carter  v.  Colby,  71  N.  H.  230, 
51   Atl.   904 523 

Carter  v.  Coleman,  84  Ala.  256, 
4  So.   151 733 

Carthage  v.  Frederick,  122  N. 
Y.  268,  25  N.  E.  480,  10  L.  R.- 
A.  178,  19  Am.  St.  Rep.  490.   620 

Carv  Ijibrary  v.  Bliss,  151 
Mass.  365,  25  N.  j:.  92 599 

Casinello,  Ex  ])artc,  62  Cal.  538  164 

Castner  v.  Ricgel,  54  N.  J.  L. 
498,  24  Atl.  484 444 

Cateril  v.  Union  Pacific  R.  Co., 
2  Id.  540,  21  Pac.  416 629 

Cearfoss  v.  State,  42  Md.  403..  454 

Cecil  V.  Green,  IGl  111.  265,  43 
N.  H.  1105,  32  L.  R.  A.  566...   389 

Central  Bridge  Corporation  v. 
Lowell,  70  Mass.  (4  Gray) 
474    587 

Central  Elevator  Co.  v.  People, 
174  111.  203,  51  N.  E.  254,  43 
L.  R.  A.  658 297 

Central  Military  Tract  R.  Co. 
V.   Kockafcllow,  17  111.  541...    461 

Central  Ohio  Salt  Co.  v.  Guth- 
rie, 35  Ohio  St.  066 347 

T'cntral  Vn'um  Tol.  Co.  v.  Brad- 
bury, 106  Tud.  1,  5  N.  E.  713.    376 

Central  TTniou  Telephone  Co.  v. 
Swoveland,    14  Ind.  App.  341, 

42  N.   E.  1035 398 

Chambers    v.    Church,    M    R.    T. 

398,  51    y\m.  Rep.  410 712 

ChamlxM-H      v.      Warkhousc,      3 

Salk.    1  10    421 

Chaniper     v.     T'ity     of     Green- 

castln,   138   Ind.  339,  35  N.  E. 

14,  21  L.  n.  A.  768,  46  Am.  St. 

Ur\,.    390 ; 52 


TABLE  OF  CASES  CITED. 


XXXIX 


[references    AJIE   TO   SECTIONS,] 


Champion     v.     Ames    (Lottery 
Case),  188  U.  S.  321,  23  Sup. 
Ct.  Eep.  321.  .  .58,  65,  66,  198,  236 
Chariton   v.    Simmons,     87     la. 

226,  54  N.  W.  146 174 

Charles  Kiver  Bridge  v.  War- 
ren Bridge,  11  Pet.  419 675 

Charless  v.  Rankin,  22  Mo.  566, 

66  Am.   Dec.   642 424 

Charlotte  C.  and  A.  E.  Co.  v. 
Gibbes,  142  U.  S.  386,  12  Sup. 

Ct.  Rep.  255 622 

Chase   v.   Hathaway,   14  Mass. 

222   252 

Chase  v.  Stephenson,  71  111.  383  698 
Chasemore  v.  Richards,  7  H. 

L.  C.  349 425 

Chatfield  v.  Wilson,  28  Vt.  49.   425 
Chavannes   v.    Priestly,    80    la. 
316,  45  N.  W.  766,  9  L.  E.  A. 

737   252 

Cheesom  v.  State,  8  Black  332.   194 
Chemung  Canal  Bank  v.   Low- 

ery,  93   U.   S.   72 709 

Chesapeake  and  Ohio  Railway 
Company  v.  Kentucky,  179  U. 
S.  388,  21   Sup.   Ct.  Rep.   101 

73,    699 

Chesapeake  Potomac  Telephone 
Co.  V.  Baltimore  &  O.  Tel.  Co., 

66  Md.  399,  7  Atl.  809 389 

Chicago  Anarchists'  Case 
(Spies  V.  People),  122  111.  1, 
12  N.  E.  865,  17  N.  E.  898,  3 

Am.   St.   Rep.   320 476,  477 

Chicago  V.  Bartee,  100  111.  57.  288 
Chicago  V.  Bureky,  158  111.  103, 
42  N.  E.  178,  29  L.  R.  A.  568, 

49  Am.  St.  Rep.  142 166 

Chicago  V.  Chicago  Union  Trac- 
tion Company,  199  111.  259,  65 

N.  E.  243   620 

Chicago  V.  Collins,  175  111.  445, 
49  L.  R.  A.  408,  51  N.  E.  907, 

67  Am.  St.  Rep.  224 38,  168 

Chicago  V.  Jackson,  196  111. 

496,  63  N.  E.  1013 511,  631 

Chicago  V.  La-flin,  49  111.  172. .  576 


Chicago  V.  O'Brien,  111  111. 
532,  53  Am.  Rep.  640 620 

Chicago  V.  Netcher,  183  111. 
104,  55  N.  E.  707,  48  L.  R.  A. 
261,  75  Am.  St.  Rep.  93..  148,  494 

Chicago  V.  Rumpf,  45  111.  90, 
92   Am.  Dec.   196 670 

Chicago  V.  Stratton,  162  111. 
494,  44  N.  E.  853,  35  L.  R.  A. 
84,  53  Am.  St.  Rep.  325.  .  .645,  689 

Chicago  V.  Taylor,  125  U.  S. 
161,  8  Sup.  Ct,  Rep.  820 510 

Chicago  V.  Trotter,  136  111.  430, 
26  N,  E.  359 174,  468,  480,  643 

Chicago  V.  Union  Stockyards 
Co.,  164  111.  224,  45  N.  E.  430, 
35  L,  R.  A.  281 525 

Chieage  &  Alton  R.  Co.  v. 
Erickson,  91  111.  613,  33  Am. 
Rep.    70 387 

Chicago  &  Alton  R.  Co.  v. 
Joliet  etc,  R.  Co.,  105  111.  388, 
44  Am.  Rep.  799 631 

Chicago  &  Alton  R.  Co,  v.  Peo- 
ple, ex  rel.  Attorney  General, 
152  111.  230,  38  N.  E.  562,  26 
L.  R.  A.  224 395 

Chicago,  Burlington  &  Quincy 
R.  Co.  V.  Chicago,  166  U.  S. 
226,  17  Sup.  Ct.  Rep.  581.506,631 

Chicago,  Burlington  and  Quin- 
cy R.  Co.  V.  Hague,  48  Neb. 
97,  66  N.  W.  1000 632 

Chicago,  Burlington  &  Quincy 
R.  Co.  V.  Iowa,  94  U.  S.  155 
362,  379,  393,  556,  733 

Chicago,  Burlington  &  Quincy 
R.  Co.  V.  Jones,  149  111.  361, 
37  N.  E.  247,  24  L.  R.  A.  141, 
41   Am.  St.  Rep.  278 381 

Chicago,  Burlington  &  Quincy 
R.  Co.  V.  Nebraska,  170  U.  S. 
57,  18  Sup.  Ct.  Rep.  513 631 

Chicago  City  Railway  Co.  v. 
People,  ex  rel.  Story,  73  111. 
541 576,   658,  670 

Chicago  etc.  Cdal  Co.  v.  PrtJple, 


xl 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


181  111.  270,  54  N.  E.  961,  48 

L.  K.  A.  554 622 

Chicago     Dock     Canal    Co.     v. 

Garrity,   115   111.  155,  3  N.  E. 

448    ..' 162 

Chicago    ami     Erie    E.     Co.    v. 

Keith,   67    Oh.    1^79,   65    N.    E. 

1020     426,  439 

Chicago   and   Grand   Trunk   E. 

Co.  V.  Hough,  61  Mich.  507,  28 

N.  E.  532 631 

Chicago   and   G.   T.   Ey.   Co.   v. 

Wellman,    143    U.    S.    339,    12 

Sup.  Ct.  Eep.  400 384 

Chicago  Life  Insurance  Co.  v. 

Needles,  113  U.  S.  574,  5  Sup. 

Ct.  Eep.   681 362 

Chicago,  Milwaukee  &  St.  Paul 

E.  Co.  V.  Ackley,  94  U.  S.  179  379 
Chicago,  Milwaukee  &  St.  Paul 

B.   Co.    V.    Minnesota,    134   U. 

8.  418,   10  Sup.  Ct.   Eep.  462, 

702   381,570.611 

Chicago,    Milwaukee     and     St. 

I'aul     Hallway     Company     v. 

Solan,  169   U.  S.   133,   18  Sup. 

a.    R.-p.   940 7.3,79 

Chi'-ago    Municipal    (Jas    Light 

and  Fuel  Co.  v.  Town  of  Lake, 

no  III.  42,  22  N.  K.  616. 576,  579 
Chi<*ag«>    and    Nortliwfsforn    E. 

Co.    V.    rhiragn,    M(t    III.    3()<t, 

29  N.  K.  546 631 

Chir-ago   &    N'urthwestr'rn   Eail 

road    <  (iinpany     v.    I'ldlor,     17 

VVnll.  r,{\i)   11,  ;;'. 

Chlrngo  &  NnrfhwoHtern  E.  Co. 
V.  MorchiMiBC,  112  Win.  1, 
56  L.  H.  ,\.  240,  88  .\ni.  SI. 
Hop.    918 427 

('hirfigo  &  XorthwoHtern  1?. 
Co.  V.  Ohic,  117  U.  8.  123,  6 
8up.  Ct.  Rop.  632 708 

Chirngo   tc   Northwofltnrn    E.   E. 

Co.  V.  I'eopip.  50  III.  :^f\r^,  h 

Am.  E»'|i.  690   3,s(),  395 

(Chicago    &,    XorthwcHtcrn    E. 


Co.  V.  Williams,  55  111.  185,  8 
Am.  Eep.  641 695 

Chicago,  Eock  Island  and  Pa- 
cific E.  Co.  V.  Young,  58  Neb. 
678,  79  S.  W.  556 632 

Chicago,  Eock  Island  and  Pa- 
cific E.  Co.  V.  Zernecke,  59 
Neb.  689,  82  N.  W.  26,  55  L. 
E.  A.  610 632 

Chicago,  Eock  Island  and  Pa- 
cific E.  Co.  V.  Zernecke,  183  U. 
S.    582 632 

Chicago,  St.  Louis  and  N.  O. 
E.  Co.  V.  Moss,  60  Miss.  641.   714 

Chicago  Union  Traction  Co.  v. 
Chicago,  199  111.  484  and  579, 
65  N.  E.  451  and  470 374,  376 

Chilcott  V.  Hart,  23  Col.  40,  45 
Tac.  391,  35  L.  E.  A.  41.  .367,  591 

Chilton  V.  St.  Louis  and  I.  M. 
E.  Co.,  114  Mo.  88,  21  S.  W. 
825,  19  L.  E.  A.  269 695 

China,  The,  7  Wall.  53 625 

Chirac  v.  Chirac,  2  Wh.  259..   706 

Chrisman  v.  Brookhaven,  70 
Miss.  477,  12  Sou.  458 698 

Christ  Church  v.  Philadelphia 
County,  24  How.  300 568 

Christian  County  v.  Merrigan, 
191  111.  484,  61  N.  E.  479.  ...  .   316 

Chy  Lung  v.  P>eeman  et  al.,  92 
II.   S.    275 71,101,486,705 

Ciiicinti.if i,  II.  and  D.  E.  Co.  v. 
Tiowling  Green,  57  Oli.  St.  336, 
49  N.  K.  121,  41  L.  E.  A.  422.    6T2 

Cincinnati  H.  and  T.  E.  Co.  v. 
ClilTord,  113  Ind.  460,  15  N. 
E.    524 579 

<'ily  of,  see  name  of  city  and 
Mayor. 

C'ity  Council  v.  Baptist  Church, 

4  Strob.  (S.  C.)  .306 141 

City    ('ouncil     of     Augusta    v. 

Buruni,    93    Ga.    68,    19    S.    E. 

820,  26  Ti.  E.  A.  340 163,  581 

Civil    Eights  Canes,   109   IT.   S. 

1,  3  Sup.  Ot.  Eep.  18 663 


TABLE  OF  CASES  CITED. 


xli 


[references  are  to  sections.] 


Clack  V.  White,  2  Swan 
(Tenn.)  540 427 

Clark,  Matter  of  Mary,  1 
Blaekf.    122    449 

Clark  V.  Mitchell  et  al.,  64  Mo, 
564   20 

Clark  V.  Washington,  12  Wh. 
40   196 

Classen  v.  Chesapeake  Guano 
Co.,  81  Md.  258,  31  Atl.  437.  . 
406,    579 

Cleland  v.  Anderson  (Neb.),  92 
N.  W.   306 337,  356 

Cleveland,  City  of  v.  Clements 
Brothers  Construction  Co.,  67 
Ohio  197,  65  N.  E.  885 310 

Cleveland  C.  C.  and  St.  Louis 
R.  Co.  V.  Connersville,  147 
Ind.  277,  46  N.  E.  579,  37  L. 
R.  A.  175,  62  Am.  St.  Eep.  418..  612 

Cleveland,  Cincinnati,  Chicago 
and  St.  Louis  R.  Co.  v.  Illi- 
nois, 177  U.  S.  514 395 

Clews  v.  Jamieson,  182  U.  S. 
461 ...    200 

Clinton,  City  of  v.  Phillips,  58 
111.  102,  11  Am.  Eep.  52 43 

Clintsman  v.  Northrup,  8  Cow. 
(N.  Y)   46 276 

Coates  V.   Mayor,  7  Cow.   585.  .   565 

Cobb  V.  Commissioners  of  Lin- 
coln Park,  202  111.  427,  67  N. 
E.    5 72 

Cochrane  v.  Frostburg,  81  Md. 
54,  31  Atl.  808,  27  L.  R.  A. 
728,  48  Am.  St.  Rep.  479 156 

Coflfey  V.  United  States,  116  U. 
S.  427,  6  Sup.  Ct.  Rep.  432.  .  .    526 

Coffin  V.  Nantucket,  5  Cush.  269..  534 

Cohen  v.  Berlin  &  Jones  Enve- 
lope Co.,  166  N.  Y.  292,  59  N. 
E.    906 347,353 

Cohn  V.  Wausau  Boom  Co.,  47 
Wis.  314,  2  N.  W.  546 408 

Colby    V.    Jackson,  12  N.H.  526..  252 

Cole  V.  Cunningham,  133  U.  S. 
107,  10  Sup.  Ct.  Rep.  269 709 

Collins  V.  Hatch,  18  Ohio  523.   156 


Collins  V.  New  Hampshire,  171 
U.  S.  30,  18  Sup.  Ct.  Rep.  768 
49,  58,  p.  54,  77,  284 

Colon  V.  Lisk,  153  N.  Y.  188,  47 
N.  E.  302,  60  Am.  St.  Rep.  609  527 

Columbia  Carriage  Co.  v. 
Hatch,  19  Tex.  Civ.  App.  120, 
47  S.  W.  288 346 

Columbia  College,  Trustees  of 
v.  Thacher,  87  N.  Y.  311,  41 
Am.    Rep.    365 

Columbus  City  v.  Cutcomp,  61 
Iowa  672,  17  N.  W.  47.  ..  . 

Combs  V.  Agricultural  Ditch 
Co.,  17  Col.  146,  28  Pac.  966, 


590 


564 


31  Am.  St.  Rep.  275. 


416 


Commissioners  of  Easton  v. 
Covey,  74  Md.  262,  22  Atl. 
266   644 

Commissioners  on  Inland  Fish- 
eries V.  Holyoke  Water  Power 
Co.,  104  Mass.  446,  6  Am.  Rep. 
247    407,418 

Commissioners  of  the  Sinking 
Fund  V.  Green  etc.  River 
Navigation  Co.,  79  Ky.  73 
587,    661 

Commonwealth  v.  Alger,  7 
Cush.  53 405,  409,  576,  617,  620 

Commonwealth  v.  Bacon,  13 
Bush.  (Ky.)  210,  26  Am.  Rep. 
189   175,464 

Commonwealth  v.  Bean,  14 
Gray    52 156 

Commonwealth  v.  Bearse,  132 
Mass.  542,  42  Am.  Rep.  450 
175,  336,  464 

Commonwealth      v.      Bird.      12 

Mass.  443,  9  Am.  Dec.  161.  .  .  566 
Commonwealth  v.  Blackington, 

24  Pick.  352 651,672 

Commonwealth   v.   Blanding,   3 

Pick.  304    471 

Commonwealth  v.  Blaisdell,  107 

Mass.    234 162 

Commonwealth  v.  Brinton,  132 

Pa.  St.  69,  18  Atl.  1092 ...  288,  294 


xlii 


TABLE  OF  CASES  CITED. 
[references  are  to  sections.] 


16/ 


225 
292 
331 
156 


Commonwealth    v.   Brown, 

Mass.  144,  45  N.  E.  1 105 

Commonwealth   v.   Brown,    141 

Mass.  78,  6  N.  E.  751 244 

Commonwealth    v.    Carey,    151 

Pa.  St.  368,  25  Atl.  140 454 

Commonwealth    v.    Carter,    132 

Mass.    12 519 

1  uminonwealth     v.     Chapin,     5 
Pick.    199,    16    Am.    Dec.    386 

' 418,    419 

Conimouwealth     v.     Cobb,     120 

Mass.    356 245 

rommwi wealth  v.  Collberg,  119 

Mass.  350,  20  Am.  Rep.  328..   248 
Co-nmonwealth  v.  Conlin 

(Ma.ss.),    68    N.    E.    1107 

rommonwcalth  v.  Crowell,  156 

Ma.HS.  215,  30  N.  E.  1015 

roiiininnwoalth     v.     Curren,     3 

Pittsb.    143 

Commonwealth  v.  Curtis,  9  Al- 
len  266 

r,,ri.iiumwflalth  v.  Davis,  162 
.M.,vs.  510,  39  N.  E.  113,  26  L. 
R.    A.    712,   44    Am.    St.    Rep. 

3«9 167.  174,  480,  644 

rommonwealth       v.       Doherty, 

137    Mass.    245 99,244 

Commonwenlth     v.     Dowdican's 

'.   lir,   Mass.   133    108 

uonwoallh.    V.    Duane,    98 

,M.    1     376 

•  ommonwenlth  v.  Eastern  R. 
Co.,    103    Mass.    254,    4     Am. 

n.,„     sr.S     363,  395 

iionwonlth     v.     Ellis,    158 

MnM.  SSS,  33  N.  K.  388 157 

Uh  V.  Emnrson,  105 

■  .   »•_•  N.  E.  559 60,  198 

wfnllh    V.    Knnox    Co., 

13  Omy,  239   362,407 

wi-nlth    V.    EvnnH,    132 

II     635 

'     -'tinonwrnlth    v.    Ewig,    145 

Ml**.  nt>,  13  N.  E.  36ri 456 

-1th     V.     T'nrren,     9 

.     035 


Commonwealth  v.  Fenton,  139 
Mass.  195,  29  N.  E.  653   .  .157, 173 

Commonwealth  v.  Fitchburg  R. 
Co.,  12  Gray  180  395 

Commonwealth  v.  Fowler,  96 
Ky.  166,  28  S.  W.  786,  33  L. 
R.   A.  839    59,  222,650 

Commonwealth  v.  Gage,  114 
Mass.    328    376 

Commonwealth  v.  Gardner,  133 
Pa.  State,  284,  19  Atl.  550,  7 
L.  R.  A.  666,  19  Am.  St.  Rep. 
645     294 

Commonwealth  v.  Gilbert,  160 
Mass.  157,  35  N.  E.  454,  22  L. 

R.  A.  439    419,422 

Commonwealth  v.  G  oiling,  3 
Mete.    130    193 

Commonwealth   v.   Gordon,   159 

Mass.  8,  33  N.  E.  709 32 

Commonwealth   v.  Haggerty,  4 

Brewst.    326     104 

Commonwealth   v.   Hallett,   103 

Mass.    452    223 

Commonwealth  v.  Hamilton 
Manufacturing   Company,   120 

Mass.  3S3   149,312 

Commonwealth  v.  Hilton,  174 
Mass.  29,  54  N.  E.  362,  45  L. 

R.  A.  475   712 

Commonwealth    v.    Hopkins,    2 

Dana,    418    96,191 

Commonwealth  v.  Hunt, 

Thatcher  Cr.  C.  609 331 

Commonwealth  v.  Hunt,  4 
Mctc.  Ill,  3S  Am.  Dec.  346. 
331,    333,    334,  .356 

Commonwealth    v.    Julius,     1)3 

Mass.   132,   H   N.   E.   89S ().35 

Commonwealth     v.     Keary,     198 

!'!i.  SI.  500.  48  Atl.  472.  .61,  291 
Commonwealth    v.    Keivhill.    12 

Cush.     Ill  214 

Commonwenilli    v.    Ki.ldor,    107 

Mass.    18H    176 

Commonwe:ilth    v.   Ki!iil)all,    24 

Pick.  366    223 


TABLE  OF  CASE8  CITED. 


xliii 


[references  are  to  sections.] 


Commonwealth     v.     Kneeland, 

20  Pick.  206    465 

Commonwealth  v.  Lagorio,  141 

Mass.  81,  6  N.  E.  546   157 

Commonwealth  v.  Lambert,  12 

Allen    177 245 

Commonwealth     v.    Landis,     8 

Phila.   453    237,238 

Commonwealth    v.    Lewis,    140 

Pa.    St.    261,    21    Atl.   396,    11 

L.  R.  A.  522   249 

Commonwealth    v.    Look,    108 

Mass.    452 419 

Commonwealth    v.    McCafferty, 

145  Mass.  384,  14  N.  E.  451.  .  168 
(;ommonwealth   v.   McDonough, 

13   Allen,   581    245 

Commonwealth      v.      Mash,      7 

Mete.    472    635 

Commonwealth    v.    Miller,    139 

Pa.  St.  77,  21  Atl.  138,  23  Am. 

St.  Eep.   170    531 

Commonwealth   v.    Mobile    and 

Ohio  E.  Co.,  23  Ky.  Law  Rep. 

784,  54  L.  R.  A.  916   719 

Commonwealth  v.  Morning- 
star,  144  Pa.  St.  103 390 

Commonwealth  v.  Munson,  127 

Mass.  459,  34  Am.  Rep.  411..  241 
Commonwealth  v.  Murphy,  166 

Mass.  171,  44  N.  E.  138,  32  L. 

R.   A.   606    90,  91 

Commonwealth    v.    Parks,    155 

Mass.  531,  30  N.  E.  174 62 

Commonwealth  v.  Passmore,   1 

S.  &  R.  217    172 

Commonwealth  v.  Pear 

(Mass.),  66  N.  E.  719    447 

Commonwealth  v.  Pennsylva- 
nia  Canal    Co.,   66   Pa.    41,    5 

Am.  Rep.  329    407 

Commonwealth    v.    Perry,    139 

Mass.  198,  29  N.  E.  653    176 

Commonwealth    v.    Perry,    155 

Mass.  117,  28   N.  E.   1126,   14 

li.  E.  A.  325,  31  Am.  St.  Eep. 

533    ....1... 324 


Commonwealth      v.      Petranich 

(Mass.),  66  N.  E.  807 232 

Commonwealth  v.  Plaisted,  148 

Mass.  375,  19  N.   E.  41,  2  L. 

E.    A.    42,    12    Am.    St.    Rep. 

566.  ..36,  158,  174,  468,  480,  644,  729 
Commonwealth      v.      Ramsdell, 

130   Mass.    68    221 

Commonwealth    v.    Regan,    182 

Mass.  22,  64  N.  E.  407 205,  636 

Commonwealth  v.  Roberts,  155 

Mass.    281,   29   N.    E.   522,    16 

L.   E.    A.   400    542 

C'ommonwealth       v.       Rumford 

Chemical  Works,  16  Gray  231. 

176, 179 

Commonwealth     v.      Sehaffner, 

146  Mass.  512,  16  N.  E.  280.  .  32 
Commonwealth    v.    Sisson,    178 

Mass.  578,  60  N.  E.  385... 60,  198 
Commonwealth    v.    Smith,    102 

Mass.    144    ' 456 

Commonwealth    v.    Smith,    166 

Mass.  370,  44  N.  E.  503   636 

Commonwealth  v.  Sylvester,  13 

Allen,    247    389 

Commonwealth     v.     Tay,     170 

Mass.  192,  48  N.  E.  1086  ....  97 
Commonwealth    v.    Tewksbury, 

11  Mete.  55....  114,  409,  424,  619 
Commonwealth   v.   Turner,    145 

Mass.  296,  14  N.  E.  130 249 

Commonwealth     v.     Tipton,     6 

Gray  473    176,529 

Commonwealth      v.     Vrooman, 

164  Pa.  306,  30  Atl.  217,  25  L. 

R.    A.    250,    44    Am.    St.   Rep. 

603    219,   364,401 

Commonwealth     v.     Waldman, 

140    Pa.    89,    21    Atl.    248,    11 

L.  R.  A.  563 735 

Commonwealth  v.  Wardell,  128 

Mass.  52,  35  Am.  Rep.  357..  .  235 
Commonwealth    v.    Wentworth, 

Brightly  (Pa.),  318   162 

Commonwealth    v.    Wetherbee, 

153  Mass.  159,  26  N.  E.  414. .     32 


xliv 


TABLE  OF  CASES  CITED. 


[references  are 

Commonwealth  v.  Whitney,  5 
Gray    S3     225 

Commonwealth  v.  Willard,  22 
Pick.  476    722 

Commonwealth  v.  Zelt.  13S  Pa. 
(515,  1  L.  R.  A.  602 232,  635 

Commonwealth  ex.  rel.  Chew  v. 
Carlisle,  Brightly  N.  P.  (Pa.), 
36    331, 332 

Compaguie  Francaise  de  Navi- 
gation V.  Louisiana  State 
Boanl  of  Health,  186  U.  S. 
380.  ..31,  71,  82,  136,  486,  488,  705 

Concord  &  Montreal  R.  Co.  v. 
Boston  &  Maine  R.  Co.,  67  N. 
H.   464,  41    Atl.   263 395 

Conditional  Discharge  of  Con- 
vict.s.  In  Re,  73  Vt.  414,  51 
Atl.  10,  56  L.  R.  A.  658 105 

Conner  v.  Elliott.  IS  How.  591..  709 

Connor  v.  Black,  119  Mo.  126, 
24  S.  W.  772   201,  202 

Conolly    V.    Union    Sewer    Pipe 

Co.,  184  U.  S.  .540 

339,  :\r,i\,  (ilO,   734,   7:'.l) 

Con«idino.    He,  83   Fed.   157...   703 

ConBolidated    <'oal    Co.    v.     llli- 

■    ;-.    1.S5   U.   S.   203 724,  727 

k  V.  (iregg.  46  \.  Y.  439.  .    168 

«ook  V.  Lilln.  103  r.  S.  793...    560 

Cook  V.  Ponnsylvania,  97  U. 
H,  .'ififi   294, 295 

Coolcy  V.  Board  of  Wardens  of 
Port  of  Philadclpiiia  .1  ;il.,  12 
How.  209  72,  80,  135,   IM 

CoomPB  V.  Burt,  22  Pick.  422.   Ml 

'         .T.  In  re,  22  N.  Y.  67 618 

. 'T    Nffg.   Co.   V.    KorgiiHon, 

n.1  tT.  a  727,  5  Snp.  Ct.  Rep. 

720 

•  orljcit,    .st.'itc    of    Minnenota 

v.,   f.7    Minn.    315,    .59    N.    W. 

317,  24  L.  R.  A.  49ft 61 

iorilpn  V.  Rtnto,  37  Knn.  4S,  i  l 

Vnr.    41»3    G.-JS 

''       '  "    '■  ".  i^nrHon  Crim- 

,  .:..  icM    ICO 331 


TO   SECTIONS.] 

Corfield  v.  Coryell,  4  Wash.  C. 
C.    371     712 

Corwin  v.  New  Haven  &  Erie 
R.  Co.,  13  N.  Y.  42 629 

Cory  V.  Carter,  48  Ind.  327,  17 
Am.  Rep.  738    698 

Coster  V.  Albany,  43  N.  Y. 
399    166,510 

Cote  V.  Murphy,  159  Pa.  St. 
420,  28  Atl.   190,  23  L.  R.  A. 

135,  39  Am.  St.  Rep.  686 

326,    337,  3.JG 

Cothran  v.  Ellis,  125  111.  496, 
16  N.  E.  646 200 

Cotting  V.  Kansas  City  Stock 
Yards    Co.     (Cotting    v.    God- 

ard),   183   U.   S.    79 375,  390, 

552,    554,   610,   637,    724,    733,    7,36 

Cottrell  v.  Myrick,  12  Me.  222.   418 

Council  of  Reading  v.  Com- 
monwealth, 11  Pa.  St.  196,  51 
Am.    Dec.   534 163 

Counselman  v.  Hitchcock,  142 
U.  S.  547 54 

I'ounty  (if,  see  name  of  (•(umty. 

Coverdalo  v.  Edwards,  155  lud. 
374,  58  N.  E.  495 582 

Covington  &  <'i)iiMiin:ili  Bridge 
Company  v.  Kentucky,  154  U. 
S.  204,  14  Sup.  Ct.  Rep.  10S7.      72 

<'ovingt<ni    iV     licxington    Turn 
|iike   Road   Company   w   Sand 
ford.    161    IT.    S.    578,    17    Suj.. 
Ct.  Ur\K  19H.63,  p.  60,  363,  551.  71.", 

(-'owden  v.  Pacifn-  Coast  Steam- 
ship   Co.,   94    Cal.    170 3.S!l 

Craft  V.  McCon.nighy,  79  111. 
346,  22   .\in.  Rep.   171 .354 

Craig  v.  lioanl  of  Medical  Ex- 
aminers,    12     Mont.     203,     29 


Pac.    53: 


■11 


Craig  V.  Gerrish,  58  N.  II.  513.  r):?5 
Crandnll  v.  Nevada,  6  Wal.  35. 

488, 489 

Crane  v.  People,  168  111.  .395.  .  .  240 
Cravens  v.  RodgerH,  101  Mo. 

247,  14  S.  W.  106 396 

Crawford  v.   TopcUa,  51   Kao- 


TABLE  OF  CASES  CITED. 


xlv 


[references  are  to  sections.] 


756,  33  Pac.  476,  20  L.  E.  A. 

692,  37  Am.  St.  Rep.  323 182 

Crease  v.  Babcock,  23  Pick. 

334,  34  Am.  Dec.  61  363 

Crendall    v.    White,    164   Mass. 

54,  41  N.  E.  204 201 

Crescent    Creamery,    State    v., 

83   Minn.   284,   86  N.   W.   107, 

54  L.   R.   A.   466,   85   Am.   St. 

Rep.    464    32 

Cronin  v.  People,  82  N.  Y.  318, 

37  Am.  Rep.  564 530,  641 

Cross  V.  Morristown,   18  N.  J. 

Eq.    305 163 

Cross  V.  People,  18  Col.  321, 

32  Pac.  821,  36  Am.  St.  Rep. 

292  198 

Crouse,    Ex    parte,    4    Whart. 

(Pa.),   9    260 

Crowley  v.  Christensen,  137  U. 

S.  86,  11  Sup.  Ct.  Rep  13.... 

.  .  .204,  210,  212,  229,  493,  652,  706 
Crowley  v.  West,  52  La.  Ann. 

526,  27  So.  53,  47  L.  R.  A.  652, 

78  Am.  St.  Rep.  355 687 

Crutcher   v.  Kentucky,   141   U. 

S.  47,  11  Sup.  Ct.  Rep,  851.  .  . 

73,  74,  342,  717 

Culley  V.  Baltimore  &  Ohio  R. 

Co.,   1   Hughes  536    699 

Cummings    v.    Chicago,    188    U. 

S.    410     72 

Cummings  v.  Missouri,  4  Wall. 

277     544 

Cummings  v.  Richmond  Coun- 
ty   Board    of    Education,    175 

IJ.    S.    528,   20    Sup.    Ct.    Rep. 

197 698,  700 

Cummings   v.   Union  Bluestone 

Co.,  164  N.  Y.  401,  58  N.   E. 

525,  52  L.  R.  A.  262,  79  Am. 

St.   Rep.   655    347,   353,354 

Curran  v.  Galen,  152  N.  Y.  33, 

46  N.  E.  297,  37  L.  R.  A.  802, 

57  Am.  St.  Rep.  496 327 

Gushing   v.    Boston,    122   Mass. 

173,  124  Mass.  434,  128  Mass. 

330     161 


The  Cynosure,  1  Sprague  88...  488 
D.  R.  Martin,  The,  11  Blatchf. 
233    386 

Dailey  v.  Superior  Court  of 
City  and  County  of  San  Fran- 
cisco, 112  Cal.  94,  44  Pac.  458, 
32  L.  R.  A.  273,  53  Am.  St. 
Rep.    160    251 

Daly  V.  Georgia  S.  F.  R.  Co., 
SO  Ga.  793,  7  S.  E.  146,  12 
Am.  St.  Rep.  286   161 

Dane  Co.  v.  Smith,  13  Wis.  585, 

80  Am.  Dec.  754 613 

Daniels  v.  Hilgard,  77  111.  640.    724 
Danville  v.  Danville  Water  Co., 

178  111.  299,  53  N.  E.  118,  60 
Am.   St.   Rep.   304    571 

Danville  Water  Co.  v.  Dan- 
ville, 180  U.  S.  619,  21  Sup. 
Ct.  Rep.  505    571 

Darcy  v.  Allen,  11  Coke  Rep. 
84     656 

Darlington  v.  Ward,  48  S.  C. 
570,  38  L.  R.  A.  326 141 

Darst  V.  People,  51  111.  286 526 

Dartmouth  College  v.  Wood- 
ward,   4    Wheat.    518 

24,  361,  363,  561,  597 

Dassler,  Re,  35  Kan.  678,  12 
Pac.    130 614 

Davenport    v.    Richmond    City, 

81  Va.  636,  59  Am.  Rep.  694.   565 
Davidson    v.    Lanier,    4    Wall. 

447     662 

Davidson    v.    New   Orleans,   96 

IT.   S.   97    20,   511,613 

Davis  V.  Board  of  County 
Commissioners  of  St.  Louis 
County,  65  Minn.  310,  67  N. 
TV.   997,   33   L.   R.   A.   432,   60 

Am.   St.   Rep.   475 29,  519 

Davis  V.  Commonwealth  of 
Massachusetts,   167   U.   S.   43, 

17  Sup.  Ct.  Rep.  731 

174,  480,  644,  655 

Davis  V.  Mayor,  14  N.  Y,  506, 
67  Am.  Dec.  186 658 


xlvi 


TABLE  OF  CASES  CITED. 
[references  are  to  sections.] 


Davis  V.  State,  GS  Ala.  5S,  4-i 

Am.  Rep.  128   

Dawson  v.  Chicago  &  Alton  K. 

Co.,  79  Mo.  296 

Dawson  v.  Lee,  S3  Ky.  -19.... 
Day,  Re,  181  111.  73,  54  N.  E. 
646,  50  L.  R.  A.  519.  .648,  651, 
Debs,  In  re,  158  U.  S.  564,  15 

Sup.  Ct.  Rep.  900  

Decie  v.  Brown,  167  Mass.  290, 

45  X.  E.  765   211, 

Dolai'laine  v.  Chicago  &  North- 
western R.  Co.,  42  Wis.  314. 
De    La    Vergne    Refrigerating 
Machine   Co.   v.   German  Sav- 
ings Institution,  175  L'.  S.  40, 

20  Sup.  Ct.  Rep.  20 

Delaware,        Lackawanna        & 

Western  R.  R.  Co.  v.  Central 

Stock  Yarils  &  Transit  Co.,  45 

X.  J.  Eq.  50,  6  L.  R.  A.  855.  . 

Demoville  v.  Davidson  Co.,   87 

Tenn.  214,  10  S.  W.  353 

Denham    v.   Bristol,    108   Mass. 

202     

Dennehy  v.  The  City  of  Chi- 
cago,   120    111.    027,    12    N.    E. 

227    39,  205, 

Dennifl  v.  Mosos,  IS  Wash.  537, 

52  I'ac.  333,  40  L.  R.  A.  302.  .. 

Donnis    v.    Simon,    61    Oh.    St. 

233,  36  X.  E.  H32   

Dfnny  v.  Tyler,  3  .\llon  225.. 

Dwt  V.  WoHt  Virginia,  129  U. 

S.   114.  9  Sup.  St.   Hep.  231.. 

133,  493,  543,  646, 

DcHhonK  V.  New  York,  176  N. 

Y.  — ,  68  N.  E.  880 

D<      '       •  ■.  Vilhigo  of,  V.  Poyer, 
1  MH,    14   X.   E.   677,  5 

Am.  St.  Rep.  524 

Detroit     V.     Detroit     ritizenH* 
Street  Rnilwny  Co.,  184  U.  S. 

368   303, 

Detroit     V.      Detroit      ntwl      11. 
I'Innk  Uoni]  Co.,   13  Minh.  140, 

5  X.  W.  27.".    

Detroit  Cltixcns'  Street  R.  Co. 


93 

395 

69S 

6S1 

Go 

672 

40S 

349 

3  SO 


427 

215 

309 

614 
252 

683 
162 

250 


303 


V.  City  of  Detroit,  110  Mich. 
384,   68   N.   \\\   304,   35   L.   R. 
A.  859,  64  Am.  St.  Rep.  350.  .    678 
Detroit  Citizens'  Street  R.  Co. 
V.  Detroit  Railway,  171  U.  S. 

48,   18  Sup.   Ct.  Rep.   732 678 

Detroit,  Fort  Wayne  and  B.  I. 
R.  Co.  V.  Commissioners  of 
Railroads,    127   Mich.   219,   86 

N.  W.  842    631 

Detroit,  Fort  Wayne,  B.  I.  Co. 

V.  Osborn,  189  U.  S.  383 631 

Dowees  v.  Miller,  5  Harr.  347.    195 
Diamond  Match  Co.  v.  Roeber, 
106  X.  Y.  473,   13   N.  E.  419, 

GO   Am.  Rep.  464   348, 353 

Dickey    v.    Tennison,    27    Mo. 

373     427 

Distilling  &  Cattle  Feeding 
Co.  V.  People  ex  rel  Moloney, 
156  111.  448,  41  N.  E.  188,  47 

Am.   St.   Rep.   200    352 

Dixon  V.  Poe    (Tnd.),  65  N.  E. 

518    735 

Doane  v.  Chicago  City  R.  Co., 
160  111.  22,  45  N.  E.  507,  35  L. 

R.   A.   588    207 

Dobbins    v.    Los    Angeles,    72 

Pac.  970   565 

Dobbins   v.   United    States,   96 

U.  S.  395    627 

Dodge    V.    Woolsey,    18    How. 

331     361 

Dodson    V.    State,    61    Ark.    57, 

31  S.  W.  977   697 

T^onahoe  v.  Richards,  38  Me. 

376  463 

Donahoo    v.    Richards,    38    Mc. 

379    463 

Donaldson    v.    Bockct,   4   Burr. 

2408     663 

Donaldson   v.   State    (Ind.),   67 

X.  E.  1029   516 

Donnoll  V.  State,  48  Miss.  661, 

12   .\in.    Hep.  375    694,695 

Donnelly  v.  Decker,  58  Wis. 
•101,  17  N.  W.  389,  46  Am. 
Rf p.    637    442 


TABLE  OF  CASES  CITED. 


xlvii 


[references  are  to  sections.] 


Donovan     v.      Vieksburg,      29 

Miss.  247,  64  Am.  Dec.  143.  .  .  168 
Doolittle    et    al.,    Ee,    23    Fed. 

544     333 

Dorsey   v.    The   State,   38   Tex. 

<'rim.  App.  527,  44  S.  W.  514, 

40   L.   R.   A.   201,   70   Am.   St. 

Eep.    762     41,724 

Douglas'    Appeal,    118   Pa.   St. 

65,  12  Atl.  834 668,718 

Douglas   V.    Kentucky,    168    TJ. 

S.  488,  18  Sup.  Ct.  Eep.  199.  . 

556,    563,    674,679 

Dow   V.   Beidelman,    125   U.    S. 

680,  8  Sup.  Ct.  Eep.  1028 

380,  393,  553,  733 

Dowdell,  Ee,  169  Mass.  387,  47 

N.  E.  1033   252,  255 

Downes   v.    Bidwell,    182    U.    S. 

244    490 

Downham  v.  Alexandria  Coun- 
cil,  10   Wall.   173 76 

Doyle  V.  Continental  Insurance 

Co.,  94  U.  S.  535   716 

Drake   v.   State,   14   Neb.   535, 

17  N.  W.   117    245 

Dred     Scott     v.     Sanford,     19 

How.  393    691 

Ducat    V.     Chicago,     10     Wall. 

410   716 

Dudley     v.     Flushing     Jockey 

Club,"  14  Misc.   (N.  Y.)   58,  35 

N.  Y.  Supp.  245   192 

Dueber     Watch     Case     Co.     v. 

Howard   Watch    Co.,    66   Fed. 

637     346 

Duffield  V.  Williamsport  School 

District,   162    Pa.    St.    476,   29 

Atl.  742,  25  L.  E.  A.  152 447 

Dugger  V.  Mechanics'  &  Trad- 
ers' Insurance  Co.,  95  Tenn. 
245,  32  S.  W.  5,  28  L.  E.  A. 
796     501 

Duluth,  City  of,  v.  Krupp,  46 
Minn.  435,  49  N.  W.  235 39 

Dunlap  V.  State,  76  Ala.  160.  .   566 
Dunlop    V.    United   States,    165 


U.    S.    486,    17    Sup.    Ct.    Eep. 

375 237,240 

Dunn     V.     Commonwealth,     20 

Ky.  L.  Eep.  1649,  43  L.  R.  A. 

701,  49  S.  W.  813  2U 

Dunne  v.  The  People  of  State 

of  Illinois,  94  111.  120,  34  Am. 

Eep.    213    91 

Durkin   v.   Kingston   Coal   Co., 

171   Pa.   St.   193,  33   Atl.   237, 

29   L.  E.   A.   808,   50   Am.   St. 

Eep.    801    G24 

Dutton  V.  Strong,  1  Black  23 .  .  408 
•Eagle  Insurance  Co.  v.  Lafay- 
ette   Insurance    Co.,    9    Ind., 

443     199 

Eagle    Insurance    Co.    v.    Ohio, 

153  U.  S.  446,  14  Sup.  Ct.  Eep. 

868     362 

Earp  V.  Lee,  71  111.  193 525 

East  India  Company  v.  San- 
dys, 10  St.  Tr.  371    656 

East    Tennessee,    Virginia    and 

Georgia    E.    Co.    v.    Interstate 

Commerce  Commission,   181  U. 

S.   1    392 

Eaton  V.  Boston,  Concord,  etc., 

E.  Co.,  51  N.  H.  504,  12  Am. 

Eep.    147    508 

Eaton  V.  Kegan,  114  Mass.  443,  275 
Eden    v.    People,    161    111.    296, 

32    L.    E.    A.    659,    43    N.    E. 

1108,  52  Am.  St.  Eep.  365 735 

Edson    V.    Crangle,    62    Oh.    St. 

49,  56  N.  E.  647    527 

Effinger  v.  Kenney,   115   U.   S. 

566,  6  Sup.  Ct.  Eep.  179 560 

Egan    V.    Hart,    45    La.    Ann. 

1358,   14   Sou.   244    409 

Eichels  v.  Evansville  Street  E. 

Co.,  78  Ind.  261,  41  Am.  Eep. 

.56    658 

Eichenlaub  v.  St.  Joseph,  113 

Mo.  395,  21  S.  W.  8,  18  L.  E. 

A.  590  528 

Eight   Hour  Bill,  Ee,   21    Colo. 

29,  39  Pac.  328   317 

Eiscobach  v.  Hatfield,  2  Wash. 


xlviii 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


236,  26  Pac.  539,  12  L.  K.   A. 
632     -iO^ 

Ekiu  V.  United  States,  142  U. 
S.  651,  12  Sup.  Ct.  Rep.  336.  .    704 

Elder  V.  Chapman,  176  111.  142, 
52  N.  E.  10   197 

Eldridge  v.  Trezevant,  160  U. 
S.  452,  16  Sup.  Ct.  Eep.  345. 
114,  409,  509 

Electric  R.  Co.  v.  Grand  Rap- 
ids, 84  Mich.  257,  47  N.  W. 
581     576 

Ellis  V.  Beale,  18  Me.  337,  36 
Am.  Dec.  726    194 

Ely  V.  Niagara  Co.  Supervis- 
ors, 36  X.  Y.  297   245,525 

Emcrt   V.   Missouri,   156   U.   S. 

296,  15  Sup.  Ct.  Rep.  325 

74,   289,  294 

Emery's  Case,  107  Mass.  172, 
9  Am.  Rep.  22   54 

Emmons  v.  Lewistown,  132  111. 
380,  24  N.  E.  58,  8  L.   R.   A. 

328,  22  Am.  St.  Rep.  540 288 

Ensminger    v.    People,    47    111. 

284     409 

Eric    R.    Co.    v.    Casey,    26    Pa. 

St.   287    363 

EHcanaha  Company  v,  Chicago, 

107  U.  S.  678 72,  159 

INf.H   V.   State.  2  Humph.  496 109 

i;v.r<»tt  V.  Marrpictte,  53  Micli. 

4.50,  19  N.  \V.  140   }(V.\ 

ExprcHH  CaHcs,  117  U.  S.  1,  6 
Hup.  rt.  Rep.  .'542 395,  .'{97 

Fnirbank  v.  Lcary,  40  Wis. 
fi.17     354 

FnirhnnkH  v.  Kerr,  70  Pa.  86, 
10  Am.   Rep.  664    174 

Full  V.  Huttor,  21   f'nl.  237.068,675 
Fiiirfnx  v.  Iluntcr.  7  f'r.  602..   706 
Fnllhrnok     Trriifation     DiHtrict 
V.  Brndloy.   161   U.  8.   112,   17 
Hup.  f't.   Hop,  r>(\    .1)1 

Fnnnlng    v.    fJregoire,    16   TTow. 

•VJ.1   075 

Fnriat  Htcol  Co.  v.  Bridgeport, 


60  Conn.  278,  22  Atl.  561,  13 

L.  R.  A.  590   181 

I'arm  Investment  Co.  v.  Car- 
penter, 9  Wyo.  110,  61  Pac. 
258,  50  L.  R.  A.  747,  87   Am. 

St.  Rep.  918    417,425 

Farmer  v.  People,  77  111.  400..    635 
Farmers'  and  Merchants  Insur- 
ance  Co.   V.    Dobney,    62    Neb. 

213,  86  N.  W.   1070 714,  727 

Farmers'  and  Merchants  Insur- 
ance Co.  V.  Dobney,  189  U.  S. 

301     714,  727 

Farmers'  Loan  and  Trust  Co. 
V.    Chicago    and    Alton    R.    R. 

Co.,  27  Fed.  146 706 

Farnham  v.   Pierce,   141   Mass. 

203,  6  N,  E.  830,  55  Am.  Rep. 

452     261,  263 

Farrell  v.  State,  45  Ind.  371..    635 
Faw   V.   Marsteller,    2    Cranch. 

10     560 

Feek    v.    Township    Board    of 

Bloomingdale,    82    Mich.    390, 

47  N.  W.  37,  10  L.  R.  A.  69.  .   217 
Fell    v.    State,    42    Md.    71,    20 

Am.  Rep.  83    564 

Folsenhcld  v.  United  States,  186 

U.  S.   126    25,  275 

Ferguson  v.  Gies,  82  Mich.  358, 

46  N.  W.  718,  9  L.  R.  A.  589, 

21  Am.  St.  Rep.  576 389,  695 

Ferguson     v.     Selma,    43     Ala. 

398     520 

Forner  v.  State,  151  Ind.  247, 

51  N.  E.  360  673 

Ferrier,  Ex  parte,  103  111.  367, 

42   Am.  Rep.   10   260 

Ferriter   v.   Tyler,  48   Vt.   444, 

21   Am.  Rep.  133   469 

Festorazzi      v.      St.      Joseph's 

Catholic     ("Inirch     of     Mobile, 

ini    ,\|;i.   :{27,    18   So.   .394,   25 

L.  K.  A.  360,  53  Am.  St.  Rep. 

48     369 

Ficklcn    V.    T:i.xing   District    of 

Shelby  (Jounty,  145  U.  S.  1,  12 

Sup.  Ct.  Rep.  810    295 


TABLE  OF  CASES  CITED. 


xlix 


[references  are  to  sections.] 


Fidelity  Mutual  Life  Associa- 
tion V.  Mettler,  185  U.  S.  308 

714,  727 

Field   V.  Chicago,   44  111.   App. 

410     177 

Field    V.    Des    Moines,    39    la. 

575,  18  Am.  Kep.  46   534 

Fields    V.    Stokley,    99    Pa.    St. 

306,  44  Am.  Eep.   109 528 

Fire  Department  of  the  City  of 

New  York  v.  Gilmour,  149  N. 

Y.    453    142 

Fishburn  v.  Chicago,  171  111. 

338,  49  N.  E.  532,  39  L.  R. 

A.  482,  63  Am.  St.  Rep.  236.  673 
Fisher     v.     Horicon     Iron     and 

Man.  Co.,  10  Wis.  351 411 

Fisher  v.  McGirr,  1  Gray  1,  61 

Am.  Dee.  381    526 

Fisk  V.  Jefferson  Police  Jury, 

116  U.  S.  131,  6  Sup.  Ct.  Eep. 

329 579 

Fiske,  Ex  Parte,  72  Cal.  125, 

13  Pae.  310  644 

•    Fiske  V.  Framington  Mfg.  Co., 

12  Pick.  68   411 

Fitchburg   E.   Co,   v.   Gage,   12 

Gray  393    389 

Fitchburg     E.     Co.     v.     Grand 

Junction  E.  Co.,  4  Allen  198.  397 
Flagg  V.  Baldwin,  38  N.  J.  Eq. 

219,   48   Atl.   319    200 

Flaherty,  Ee,   105  Cal.   558,   38 

Pac.  981,   27  L.  E.  A.  529... 

174, 644 

Fleming  v.  Hull,  73  la.  598, 
35  N.  W.  673    427 

Fletcher  v.  Peck,  6  Cranch.  87.   561 

Flinn  v.  New  York  Central  and 
Hudson  Elver  Eailroad,  142 
N.  Y.  11,  36  N.  E.  1046 630 

Fluker  v.  Georgia  E.  and 
Banking  Co.,  81  Ga.  461,  8  S. 
E.  529,  2  L.  E.  A.  843 396 

riukes.  Ee,  157  Mo.  125,  51 
L.  E.  A.  176,  57  S.  W.  545..   301 

Fong     Yue     Ting     v.     United 


States,  149  U.  S.  698,  13  Sup. 

Ct.  Eep.  1016 486,  487,  704 

Foote    V.    Buchanan,    113    Fed. 

Eep.  156    .54,    p.  48 

Ford  V.  State,  85  Md.  465,  37 

Atl.  172,  41  L.  E.  A.  551,  60 

Am.  St.  Eep.  337   198,  635 

Ford  V.  Thralkill,  84  Ga.  169..  141 
Fort  Smith  v.  Scruggs,  70  Ark. 

549,  69  S.  W.  679,  58  L.  R.  A. 

921    38,  168 

Fortenbury    v.    State,    47    Ark. 

188,  1  S.  W.  58 201 

Foster  v.  Police  Commissioner- 

ers,  102  Cal.  483,  37  Pae.  763. 

546,  703 

Fowle   V.   Park,   131   U.   S.   88, 

9  Sup.  Ct.  Eep.  658    346 

Fowler  v.  State,  5  Day  (Conn.) 

81    235, 453 

Fox   V.    Washington   Territory, 

2  Wash.  297,  5  Pac.  603   ......   684 

France  v.  State,  57  Oh.  St.  1, 

47  N.  E.  1041   647 

Francois,    Ex   Parte,    3    Woods 

367     697 

Fraser  v.  McConway  &  Torley 

Co.,  82  Fed.  257 706 

Frasher  v.  State,  3  Tex.  App. 

263,  30  Am.  Eep.  131  697 

Frazee,    Ee,    63    Mich.    396,   30 

N.  W.  72,  6  Am.  St.  Eep.  310. 

174,  468,  643,  673 

Ex  parte  Frazer,  54  Cal.  94.  . ..  673 
Frazer  v.  Chicago,  186  111.  480, 

57  N.  E.  1055 178,  510,  511 

Freeport  Water  Co.  v.  Freeport, 

186  111.  179,  57  N.  E.  862 571 

Freeport  Water  Co.  v.  Freeport, 

130   U.   S.   587 571,  679 

Freleigh  v.  State,  8  Mo.  606.. 

563, 579 

French    v.    State    (Texas    Cr. 

App.),  58  S.  W.  1015,  52  L.  R. 

A.    160    294 

Frisbie    v.    United    States,    157 

U.   S.    160,   15   Sup.   Ct.   Eep. 

586     24 


TABLE  OF  CASES  CITED. 


[keferexces  are  to  sections.] 


Frorer  v.   People,   141  111.   171, 
31  N.  E.  3ii5.  16  L.  K.  A.  492. 

320, 

Frost  V.   Chicago,  178  111.  250, 
52  N.  E.  869,  49  L.  E.  A.  657, 

69  Am.  St.  Rep.  301 

Frost    V.    People,    193    111.    635, 

61  N.  E.  1054 

Frost  V.  Washington  County  E. 

Co.,  96  Me.  76.  51  Atl.  S06.  .. 

Fry  V.  The  State,  63  Ind.  552, 

39  Am.  St.  Rep.  238 61, 

Fuller  V.  Mt.  Vernon,  171  X.  Y. 

247,  63  X.  E.  964 

Fuller  V.  State,  122  Ala.  32,  26 
So.   146,  45   L.   R.   A.   502,  82 

Am.  St.  17   104, 

Gaines  v.  Buford,  31  Ky.  481.. 
Gaines  v,  Coates,  51  Miss.  335. 
Gallagher   v.   Dodge,   48   Conn. 

387,  40  Am.  St.  Rep.  182 

Gannon  v.  Doyle,  16  R.  I.  726, 

19  Atl.  331,  5  L.  R.  A.  359... 

Gardner     v.     Hope     Insurance 

Company,  9  R.  1.  104,  11  Am. 

Rpp.    238    

Garland,  Ex  Parte,  4  Wall.  33. 
Garland    Xovelty    Co.    v.    State 

f..\rk.).  71   S.  W.  257 

(larncft,  «'t  ala.,  In   Re,  141   IT. 

8.  1,  11  Rup.  Ct.  Rep.  84*0 

Gnrxt   V.   IlarriH,    177    Mass.   72, 

r.«*  .V.  K.  174 

(Jartnn  v.  HrlHtol  nn<l  Exeter  R. 

Co.,  fi  C.  n.  (N.  S.)  (539 

Gnrtnido  v.  EaHt  St.   LouIh,    13 

'"     47     

rirnu  V.  ComTionwealth,  22 
Ky.    I..    Krp.    157.    r,(]    S.    \V. 

.  49  }..  U.  A.   Ill 

■         n  V.  Walton,  fio  N.  C.  325 

'>rd    V.    Hnnitnry    DiHtrict 

of  ChlrftKo,  204  III.  .'570,  08  N. 

K.    .",22    

f:.,l,r;  r    .     Htnfe,  .'»  Iowa  491 

norllrnt.   101    V.  S. 

'.   10  Hnp.  Ct.  R<.p.  000,.417, 

Ucorgo  V.  IVopIp  of  State  of 


735 

286 
526 

408 
291 
510 

107 
439 
274 

426 

252 


507 
544 

526 

66 

340 

397 

168 


703 
560 


412 
217 

420 


Illinois,  1G7  111.  447,  47  X.  E. 

741  105 

Gibbons  v.   Ogden,  9  Wheat.   ]. 

2,   69,   72,  136 

Gibson    v.    United    States,    16G 

U.    S.    269,    17    Sup.    Ct.    Eep. 

578    114,  408 

Gifford     Drainage     District     v. 

Shroer,  145  Ind.  572,  44  X.  E. 

636     442 

Giles'   Case,   2  Stra.   881 654 

Giles    V.    Walker,    L.    E.    24    Q. 

B.    D.    656    616 

Gillespie  v.  People,  188  111.  176, 

58  X.   E.   1007 3:^6,  735 

Oilman      v.      Philadelphia,      3 

Wall.    713    72 

Gilman   v.   McArdle,   99   N.   Y. 

451,  2  X.  E.  464,  52  Am.  Rep. 

41     369 

Gilpin    V.  Williams,  25   Oh.   St. 

283     591 

Gilpin      Overseers      v.      Parks 

Overseers,  118  Pa.  St.  84,  11 

Atl.   791    271 

Gladson   v.   Minnesota,   166   U. 

S.  427,  17  Sup.  Ct.  Eep.  627.  .      73 
Glennon    v.    Britton,    155    111. 

232,  40  N.  E.  594 520 

Gloucester   Ferry    Company    v. 

Pennsylvania,    114   U.   S.    196, 

5  Sup.  Ct.  Rep.  826.  .  .117,  717,  718 
Gloucester    Isinglass    and    Glue 

Co.  V.  Russia  Cement  Co.,   154 
Mass.  92,   27   X.   E.   1005 .347 

Glovrr  v.  Powell,  10  X.  J.  F.q. 
211      576 

Godhout  V.  St.  Paul  Union  De- 
pnt  Iv'.  ('«.,  79  Minn.  ISS,  SI 
X.  W.  8.35,  47  L.  R.  A.  532..    396 

Godcharles  v.  Wigoman,  113 
Pa.  St.  431.   C,   Atl.  354..  .320,  735 

Goddard  v.  Cliicngo  &  North- 
wcHtorn  Railway  Co.,  202  111. 
302.  00  X.   E.  1066    49.3 

Goddard.  Polilioncr.  16  Pick. 
.')04.  28  Am.  Dec.  259 620 

Good  in.  Ex  Parte,  67  Mo.  037.    566 


TABLE  OF  CASES  CITED. 


li 


[references  are  to  sections.] 


Gordon  V.  Hutchinson,  1  W.  & 

S.  285,  37  Am.  Dec.  464 388 

Gordon    v.    State,   46   Ohio    St. 

607,  23  N.   E.   63,  6  L.  E.  A. 

749     217 

Gordon     v.    Winchester     Bldg. 

etc..  Association,  12  Bush  110, 

23  Am.  Eep.   713    304 

Gould  V.  Hudson  River  R.  Co., 

6  N.  Y.  522   408 

Governor,  etc.,  of  British  Cast 

Plate  Manufactures  v.  Mere- 
dith, 4  T.  R.  794   507 

Graded  School  District  v.  Trus- 
tees of  Bracken  Academy,  95 

Ky.  436,  26  S.  W.  8 362,  599 

Graff  V.   Evans,   L.   R.   8   Q.  B. 

Div.    373     .' 456 

Grand    Junction    Canal    Co.    v. 

Shu'gar,   L.    R.    6    Chan.    App. 

483     425 

Grand  Lodge  v.   New  Orleans, 

166  U.  S.  143,  17  Sup.  Ct.  Rep. 

523    362,568 

Grand     Rapids,      City      of     v. 

Brandy,   105  Mich.  670,  64  N. 

W.  29,  32  L.  R.  A.  116,  55  Am. 

St.  Rep.  472    93 

Grand  Rapids  v.  De  Vries,   123 

Mich.   570,   82   N.  W.   269 670 

Grand  Rapids  v.  Williams,  112 

Mich.   247,   70  N.   W.   547,   36 

L.  R.  A.  137,  67  Am.  St.  Rep. 

396     168 

Grand    Rapids    Booming   Co.    v. 

Jarvis,  30  Mich.  308...4U8,  409,  508 
Grand     Rapids     Chair     Co.     v. 

Runnels,   77  Mich.   1134,  43  N. 

W.  1006   727,  735 

Granger    Cases,    94    U.    S.    113, 

155,  164,  179,  180,  181,  183..  376 
Grant  v.  Davenport,  18  la.  179..  408 
Graves  v.   Shattuck,  35  N.  H. 

257,  69  Am.  Dec.  536   168 

Gray  v.  Connecticut,  159  U.  S. 

74,  15  Sup.  Ct.  Rep.  985 222 

Gray  v.  State,  4  Oh.  353 700 


Great  Western  R.  Co.  v.  Sutton, 

L.  R.  4  H.  L.  226 389 

Green  v.  Savannah,  6  Ga.  1.  .  .  127 
Green  v.  State,  58  Ala.  190,  29 

Am.  Rep.  739  69G 

Green    v.    Swift,    47    Cal.   536. 

114,  409 

Greene,  Re,  52  Fed.  Rep.  104.  .  346 
Greensboro,    City    of    v.    Ehren- 

reich,  80  Ala.  579,  60  Am.  Rep. 

130    62 

Greenville  v.  Kenimis,  58  S.  C. 

427,  50  L.  R.  A.  725 190,  453 

Greenwood    v.    Union    Freight 

R.  Co.,  105  U.  S.  13   362,363 

Greer    v.    Downey     (Ariz.),    71 

Pac.  900,  61  L.  R.  A.  408 168 

Greers    v.    Hangabook,   47    Ga. 

282     668 

Gregory's  Executrix  v.  Trus- 
tees    of     Shelby     College,    2 

Mete.    (Ky.)    589    556,563 

Gregory,  Ex  parte,  20  Tex.  App. 

210,  54  Am.  Rep.  516  n 168 

Gregg   V.    Granby   Mining   and 

Smelting    Company,    164    Mo. 

616,  65  S.  W.  312   363 

Grice,  Re,  79  Fed.  Rep.  627...  35S 
Gridley  v.  Bloomington,  88  111. 

554,  30  Am.  Eep.  566   620 

Grimm    v.    United    States,    156 

U.  S.  604,  15  Sup.  Ct.  Rep.  470 

236, 453 

Grisell  v.   Noel   Brothers,   etc., 

Co.,  9  Ind.  App.  251,  36  N.  E. 

452     316 

Grissell   v.   Housatonic   R.   Co., 

54    Conn.    447,    9    Atl.    137,    1 

Am.  St.  Rep.  138  ...629,  630,634 
Griswold  v.  Webb,  16  R.  I.  649, 

19  Atl.  143,  7  L.  R.  A.  302.  .  .  396 
Groesch  v.  State,  42  Ind.  547.  217 
Gross'  License,  161  Pa.  St.  344, 

29  Atl.  25 209,  654 

Gulf,  C.  and  S.  F.  R.  Co.  v.  El- 
lis, 165  U.  S.  150,  17  Sup.  Ct. 

Rep.  255 610,  714,  715,  727,  735 

Gulf,  C.  and  S.  F.  Ry.  Co.  v. 


Hi 


TABLE  l)F  CASES  CITED. 


[references  are  to  sections.] 


Ellis  (Tex.),  IS  S.  W.  723,  17 

L.   R.   A.   286 727 

GuniUing  v.  Chicago,  177  U.  S. 
1S3.  20  Sup.  Ct.  Rep.  633 655 

Guun  V.  Barry,  15  Wall.  610..   557 

Gushee  v.  New  York,  42  App. 
Div.  37,  57  N.  Y.  Supp.  967 .  .   670 

Glittery  v.  Glenn,  201  111.  275, 
66   N.   E.   305 171 

Guy  V.  Cumberland  Co.  Com- 
missioners, 122  N.  C.  471,  29 
S.   E.  771    667 

Hagerstown  v.  Witmer,  86  Md. 
293,  37  Atl.  965,  39  L.  R.  A. 
649    156,421 

Haggart  v.  Stohlin,  137  Ind. 
43,  35  X.  E.  997,  22  L.  R.  A. 
577     178 

Haile  v.  State,  38  Ark,  564,  42 
Am.  Rep.  3    90 

Hall,  Re,  50  Conn.  131,  47  Am. 
Rep.    625    702 

Hall  V.  De  Cuir,  95  U.  S.  485. 
73, 694 

Hall  V.  Mayor  of  Bristol,  L.  R. 
2  C.  P.  322 510 

Hall.-r  V.  Slieridari,  27  Ind.  494  421 

Hamilton  Gas  Light  and  (,'oke 
Co,    V.    Hamilton,    146    U.    S. 

258,  13  Sup.  Ct.  Rep.  90 677 

Hancock  v.  Yaden,  121  Ind. 
360,  23  N.  E.  253,  16  Am.  St. 

Rop,  390  320,  735 

Haney  v,  Clompton,  36  N.  J.  L. 

r,i\7    527,712 

llankins  v.  State   (Tex.),   72  S. 

W.    191    I'.Mi 

Hannah   v.   People,    198    III.    77, 

01    N.    ?:.    770 i;97 

Hannibal  and  St.  .ToHoph  Rail- 
rond    Company    v.    HiiHon,    95 

r,  «,  46.'; 71,  77,  83,  101,  138 

Hnnnnn  v.  Webb.  3  C'nj.  236.  .  .    668 
Hnnnrnn   v.   Lowidl.   105  MaHH. 

119.  4.T  N.  K.  190    429 

H'rbnuKh     V.     People,     10     111. 

:;•»  ncj 

HnrbiRon  v.  Knoxvillc  Iron  Co,, 


103   Tenu.   421,   53  S.  W.  955, 

56  L.  E.  A.  316 

Hardin  v.  Jordan,  140  U.  S. 
371.  11  Sup.  Ct.  Eep.  808,  838 

11, 

Harding  v.  American  Glucose 
Co.,  182  111.  551,  55  N.  E.  577, 
74  Am.  St.  Rep.  189 

Harding  v.  People,  160  111.  459, 
43  N.  E.  624,  32  L.  R.  A.  445, 
52  Am.  St.  Rep.  344.  .394,  502, 

Harding  v.  Goodlett,  3  Yerg. 
41,  24  Am.  Dec.  546 

Harmon  v.  Chicago,  110  111. 
400,  51  Am.  Rep.  698 

Harmon  v.  State,  66  Oh.  St. 
249,  64  N.  E.  117,  58  L.  R.  A. 
618 493,  496,  649, 

Harney  v.  State,  8  Lea.  113.  .  . 

Harrington  v.  Providence,  20. 
R.  I.  233,  38  Atl.  1,  38  L.  E, 
A.    305    

Harris  v.  White,  81  N.  Y.  532. 
192, 

Harrison  v.  Brophy,  59  Kans. 
1,  40  L.  R.  A.  721,  51  Pac.  883 

Harrison  v.  Ely,  120  111.  83, 
11  N.  E.  334   

Harrison  v.  Glucose  Sugar  Re- 
fining Co.,  116  Fed.  304,  58  L. 
R.  A.  915   

Harrison  v.  Mayor  of  Balti- 
more, 1  Gill  (Md.)   264... 123, 

Harrison    v.    People,     101     III. 


320 


404 


353 


412 
177 

684 

722 

542 
194 
369 
226 


App 


212. 


Harrison     v.     People     ex     rel. 

Boettcr,  195  111.  466,  63  N.  E. 

191     212, 

Harrison   v.   Wisdom.    7   TToisk. 

(Tcnn.)    99    

Hart    V.    Boston,    etc.,    E,    Co., 

121  Mass.  510   

Hart    V.    Mayor    of    Alliany,    3 

Paige   213    

lliirt    V.   Western   Railroad   Co., 

13   Mete.   99    ... 

Hartnett   v.    Plumbers'   Sup]dy 

Association  of   New  England, 


348 
446 
644 

652 
537 
626 
170 
630 


TABLE  OF  CASES  CITED. 


liii 


[references  are  to  sections.] 


169  Mass.  229,  47  N.  E.  1002, 

38  L.  E.  A.  194   301 

Harvey   v.    Merrill,    150   Mass. 
1,  22  N.  E.  49,  5  L.  E.  A.  200, 

15  Am.  St.  Eep.  159   200 

Haskell,    Ex    Parte,    112    Cal. 
412,  44  Pac.  725,  32  L.  E.  A. 

527   58,  p.  53 

Hatwood  V.  State,  18  Ind.  492 . 

488, 691 

Hauenstein  v.  Lynham,  100  U. 

S.  483    706 

Hawker  v.  People  of  State  of 
New  York,  170  U.  S.   189,  18 

Sup.  Ct.  Eep.  573 26,  110,  545 

Hawkins,    Ex    Parte,    61    Ark. 
321,  33  S.  W.  106,  30  L.  E.  A. 

736,  54  Am.  St.  Eep.  209 104 

Hawkins,    Ee,    165    N.    Y.    188, 

58  N.  E.  884 683 

Hawkins  v.  Sanders,  45  Mich. 

491,  8  N.  W.  98   162 

Hawkins       Point       Lighthouse 

Case,  39  Fed.  77 404 

Hawthorn  et  al.  v.  The  People 

of   the   State    of   Illinois,    109 

111.  302,  50  Am.  Eep.  610.  .40,  297 
Hayden   v.   State     (Miss.),     33 

So.  653    133 

Hayes,  Ex  Parte,  98  Cal,  555, 

33  Pac.  337,  20  L.  E.  A.  701.  .   703 

Haverty  v.  Bass,  66  Me.  71 123 

Head   v.    Amoskeag   Mfg.    Co., 

113  U.  S.  9,  5  Sup.  Ct.  Eep. 

441 410,  411 

Health   Department   v.   Trinity 

Church,  145  N.  Y.  32,  39  N.  E. 

833,  27  L.  E.  A.  710,  45  Am. 

St.  Eep.  579 150,  549 

Hechinger  v.  Maysville,  22  Ky. 

L.  Eep.  486,  57  S.  W.  619,  49 

L.   E.   A.   114 158,  457 

Heilbron,  Ex  Parte,  65  Cal.  609.  141 
Helphenstine  v.  Hartig,  5  Grif- 
fiths (Ind.  App.)  172 316 

Heilbron,    Ex    Parte,    65    Cal. 

609,  4  Pac.   648    530 

Henderson  et  al.  v.  Mayor  of 


the  City  of  New  York  et  al., 
92    U.    S.    259 

71,   79,   101,   271,   486,705 

Henderson  Bldg.  Loan  Associ- 
ation V.  Johnson,  88  Ky.  191, 

10  S.  W.  787,  3  L.  E.  A.  289.  .  304 
Hennington  v.  Georgia,  163  U. 

S.  299,  16  Sup.  Ct.  Eep.  1086. 

73, 159 

Hepburn   v.   Griswold,   8   Wall. 

603     558 

Hewitt  V.  Charier,  16  Pick.  353 

153, 673 

Hewitt   V.   Story,  64  Fed.   510, 

30  L.  E.  A.  265 416 

Hewitt    V.    Watkins,    11    Barb. 

409   444 

Hibbard,    Spencer,    Bartlett    & 

Co.  V.  Chicago,  173  111.  91,  50 

N.  E.  256,  40  L.  E.  A.  621  ...  163 
Hibbard  v.  People,  4  Mich.  125  526 
Hibbard   v.    State,    65    Oh.    St. 

574,  64  N.  E.  109,  58  L.  E.  A. 

654 436' 

Hibblewhite    v.    McMorine,    5 

M.  &  W.  462   200 

Hilo  Sugar  Mfg.  Co.  v.  Mioshi, 

8  Haw.  Eep.  201    450 

Hine  v.  New  Haven,  40  Conn. 

478    528, 644 

Hiner  v.  Fond  du  Lac,  71  Wis. 

74,  36  N.  W.  632   620 

Hirn  v.  State,  1  Oh.  St.  15...   564 
Hisey  v.  Mexico,  61  Mo.  App. 

248     163 

Hobbs,  Ee,  1  Woods  537   697 

Hoboken,    City   of    v.    Goodman 

(N.  J.),  51  Atl.  1092 703 

Hockett  V.  State,  105  Ind.  250, 

5  N.  E.  178,  55  Am.  Eep.  201.  376 
Hocking    Valley    Coal    Co.    v. 

Eosser,  53  Oh.  St.  12,  41  N.  E. 

263,  29  L.  E.  A.  386,  53  Am. 

St.   Eep.   622 714,735 

Hodges,  Ex  parte,  87  Cal.  162, 

25   Pac.    277    618 

Hodges  V.  Ferine,  24  Hun  516.   409 
Hoeffer  v.  Clogan,  171  111.  462, 


liv 


TABLE  OF  CASES  CITED. 


[references  are 

40  L.  E.  A.  730,  63  Am.  St. 

Rep.  241  369 

Hokleu  V.  Hardy,  169  U.  S. 
366,  IS  Sup.  Ct.  Eep.  383... 

131,  155,  317,  501,  735 

Hollailay    v.    Marsh,    3    Wend. 

142,  20  Am.  Dec.  678   444 

Holland  V.  Allcock,  108  N.  Y. 
312,   16  N.  E.  305,  2  Am.  St. 

Kep.    420    369 

Hollister      v.      Union      Co.,      9 

Conn.  436,  25  Am.  Dec.  36 409 

Holmes  v.  Jennison,  14  Peters 

540     5 

Holmes  v.  Smytlie,  100  111.  413.   304 
Hoist   V.   Eoe,   39   Oh.   St.   340, 

48    Am.   Eep.   459    434 

Holyoke   Water   Power    Co.   v. 

Lyman,  15  Wall.  500    ....407,418 
Home  Insurance  Co.  v.  Morse, 

20  Wall.  445    716 

Homer  Ramsdell  Transportation 
Co.     V.     Comjiaj^nie     Generale 
Transatlantiquc,  182  U.  S.  406.  626 
Honker   V.   Town   of   Greenville, 

130  \.  C.  472,  42  S.  E.  141.  .   700 
Hooker  v.  Vandewater,  4  Den. 

349,  47  Am.  Dec.  258   347 

Hooper    v.    California,    155    U. 
8.  648,  15  Sup.  Ct.  Eep.  207.  .   715 
Hooper  V.  Emery  et  :il.,  14  Me. 

375    23 

HopkinH  V.   United  States,   171 
U.  8.  578,  19  Sup.  Ct.  Eep.  40 

3n.   351,354 

HopBon 'b  Appeal,  65  Conn.  140, 

31    All.  531    209 

Hornn   v.    Hyrncs    (N.    TL),    54 

All.    045 4L'fi 

Horn  Silver  Mininj;  <'o.  v. 
Now  York,   143  U.  8.  305,   12 

Sup.  Ct.   Hep.   403    .    350 

Horner  v.  United  States,  147 
U.    8.    410,    13    Sup.    Ct.    Eep. 

409    196,198 

Horwirh  v.  WalkerOordon 
Lnliorntnry  Co.,  205  HI.  497, 
fiH  N.   H.  038 298 


TO   SECTIONS.] 

House   of  Eefuge  v.  Eyan,  37 

Ob.  St.   197    262 

Hovelman      v.      Kansas      City 

Horse  E.  Co.,  79  Mo.  632 576 

Howes  V.   Maxwell,   157  Mass. 

333,  32  N.  E.  152    . .  ; 626 

Hronek  v.  People,  134  111.  139, 

24  N.  E.  861,  8  L.  E.  A.  837, 

23  Am.  St.  Eep.  652  461 

Hubbard  v.  Callahan,   42  Conn. 

524,  19  Am.  Eep.  564 555 

Huber  v.  Merkel   (Wis.),  94  N. 

W.   354    425 

Hudelson  v.  State,  94  Ind.  426, 

48  Am.  Eep.  171    198 

Hudson  V.  Thorne,  7  Paige  261.  141 
Hughes  V.  Eecorder's  Court  of 

Detroit,   75   Mich.   574,  42   N. 

W.    984,    4   L.   E.    A.    863,    13 

Am.  St.  Eep.  475   667 

Humpeler  v.  People,  92  IlL  400.  635 
Hunt  V.  Coggin,  66  N.  H.  140.  426 
Hunt   V.    Searcy,    167    Mo.    158, 

67  S.  W.  206 253 

Hurley  v.  Eddingfield,  56  Ind. 

416,  59  N.   E.   1058,  53  L.  E. 

A.    135    386,  650 

Hussey   v.   Crickett,   3   Campb. 

168     195 

Hyde  v.  County  of  Middlesex. 

2   Gray  267    162 

leck  v,   Anderson,   57   Cal.   251, 

40  Am.  Eep.  115    527 

llor  V.  Eoss   (Neb.),  90  N.  W. 

869,  57  L.  E.  A.  895 670 

Illinois      Central      E.      Co.      v. 

liloomington.   76  111.  447    631 

Illinois   Ceufral    1\.    Co.    v.    ('(im- 

iiKinwcallh,     23    Ky.     Ti.     Hop. 

1159,  64  S.  W.  975 392 

Illinois  Central  E.  Co.  v. 
(rider,  91  Teun.  489,  19  S.  W. 
CIS    629,727 

Illinois  Central  E.  Co.   v.    illi 
noia,    146    T^    S.    387,    13    Sup. 
Ct.  Eep.   110    408,  574,601 

Illinois  Centr:il   Eailroad   Com- 


TABLE  OF  GASES  CITED. 


Iv 


[references  are  to  sections.] 


pany  v.  Illinois,  163  U.  S.  142, 

16  Sup.  Ct.  Rep.  1096.  .73,  395,  408 

Illinois  State  Board  of  Dental 
Examiners  v.  People  ex  rel. 
Cooper,  123  111.  227,  13  N. 
E.    201 153,  647 

Indiana,  State  of,  v.  Woram, 
6  Hill  (N.  Y.)   33    22 

Indianapolis  &  Cincinnati  E. 
Co.  V.  Kercheval,  16  Ind.  84.   362 

Indianapolis  Cable  Street  E. 
Co.  V.  Citizens  Street  E.  Co., 
127  Ind.  369,  24  N.  E.  1054, 
26  N.  E.  893,  8  L.  E.  A.  539. 
660, 675 

Indianapolis  Union  E.  Co.  v. 
Dohn,  153  Ind.  10,  53  N.  E. 
937,  45  L.  E.  A.  427,  74  Am. 
St.  Eep.   274    398 

IngersoU  v.  Sargent,  1  Whart. 
337     370 

Ingram   v.   The   State,   39   Ala. 

247,   84   Am.  Dec.   782    

58,  p.   53,  516 

Intendant  v.  Sorrell,  1  Jones 
Law  (N.  C.)   49   274 

Intendant  and  Council  of 
Town  of  Marion  v.  Chandler, 
6    Ala.    899 216 

International  Text  Book  Com- 
pany V.  Weissinger  (Ind.),  65 
N.  E.  521   319 

Inter  Ocean  Publishing  Co.  v. 
Associated  Press,  184  111.  438, 
56  N.  E.  822,  48  L.  E.  A.  568, 
75  Am.  St.  Eep.  184   386 

Interstate  Commerce  Commis- 
sion V.  Alabama  Midland  E. 
Co.,  168  U.  S.  144,  18  Sup. 
Ct.  Eep.  45    381, 392 

Interstate  Commerce  Commis- 
sion V.  Baltimore  &  Ohio  E. 
Co.,  145  U.  S.  263,  12  Sup.  Ct. 

Eep.    844    391 

Interstate  Commerce  Commis- 
sion V.  Cincinnati,  N.  O.  and 
T.  P.  Ey.  Co.,  167  U.  S.  479, 
17  Sup.  Ct.  Eep.  896   375 


Iowa  Savings  &  Loan  Associa- 
tion V,  Heidt,  107  la.  297,  77 

N.  W.  1050,  43  L.  E.  A.  689, 

70  Am.  St.  Eep.  197   304 

Irwin  V.  Phillips,  5  Cal.  140,  63 

Am.  Dec.  113    415 

Irwin  V.  Williar,  110  U.  S.  499, 

4  Sup.  Ct.  Eep.  160 200 

Isenhour  v.  The  State,  157  Ind. 

517,  62  N.  E.  40 34 

Jackson,    Ex   parte,    96    U.    S. 

727    48,236 

Jackson   v.    Phillips,    14   Allen 

539     599 

Jackson  v.   Eogers,   2    Shower 

327     387 

Jackson  v.  Shawl,  29  Cal.  267. 

303, 733 

Jackson  v.   Stanfield,   137  Ind. 

592,  36  N.  E.  345,  23  L.  E.  A. 

588     345 

Jacksonville     v.     Ledwith,     26 

Fla.  163,  7  So.  885,  9  L.  E.  A. 

69,  23  Am.  St.  Eep.  558 667 

Jacobs,  In  re,  98  N.  Y.  98 151 

Jamieson    v.    Indiana    Natural 

Gas  and  Oil  Co.,  128  Ind.  555, 
'  28  N.  E.  76,  12  L.  E.  A.  652.   556 
Jamison  v.  Burton,  43  Ind.  282  635 
Janes,    Ee,    30    How.    Pr.    (N. 

Y.)    446    227 

Janesville     v.     Carpenter,     77 

Wis.  288,  46  N.  W.  128,  8  L. 

E.  A.  808,  20  Am.  St.  Eep.  123  404 
Jannin    v.    State    (Texas),    51 

S.  W.  1126,  53  L.  E.  A.  349. 

61,   291,298 

Janvrin,  Ee,  174  Mass.  514,  55 
N.  E.  381   385 

Jeffries  v.  Ankeny,  11  Oh.  372.   700 

Jeffreys    v.    Boosey,    L.    E,    4 

H.  L.  Cas.  815   663 

Jencks    v.    Coleman,    2    Sumn. 

221     386 

Jenkins   v.   Ballantyne,   8   Utah 

245,  30  Pac.  760,  16  L.  E.  A. 

689     421 


Ivi 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Jenks  V.   Turpin,  L.   R.   13   Q. 

B.  D.  505   190, 191 

Jensen    v.     Union    Pacific    R. 

Co.,  6  Utah  253,  21  Pac.  994, 

4  L.  R.  A.  724   629 

Jentzsch,  Ex  parte,  112  Cal. 

468,  44  Pac.  803,  32  L.  R.  A. 

664  735 

John    D.    Park   &    Sons   Co.    v. 

National   Wholesale    Druggists 

Assoc 'n,   175   N.   Y.    1,   67   N. 

E.  136   346 

John  Spry  Lumber  Co.  v.  Sault 

Savings      Bank,      Loan      and 

Trust  Co.,  77  Mich.  199,  43  N. 

W.  788,  18  Am.  St.  Rep.  396.  626 
Johnson  v.  Chicago,  Milwaukee 

and  St.  Paul  R.  Co.,  29  Minn. 

425,  13  N.  W.  673   727 

Johnson  v.  Fall,  6  Cal.  359,  65 

Am.  Dee.  518    195 

Johnson    v.    Goodyear    Mining 

Company,  127  Cal.  4,  59  Pac. 

304,  47  L.  R.  A.  338,  78  Am. 

St.   Rep.   17 320,715 

Johnson  v.  Midland   K.   R.  Co., 

4  Exch.  367   388 

Johnson    v.   Oregon   Short   Line 

Co.    (Idaho),   63   Pac.    112,  53 

I,.   H.   A.  744 629 

.lohnHon  v.  Peiisacohi  &c.  R.  Co. 

16  Fla.  623,  26  Am.  Rep.  731..  389 
JonPH  V.   lirim,    165   V.   S.    180, 

17  Sup.  Ct.  Rep.  253 632 

Joncfi   V.   Oalona,   etc,   R.   Co., 

16  Iowa   6 629 

JoncB  V.  People,  14  111.  196...  214 
Jones  V.  Perry,  50  N.  H.  i:!t  .  tit 
Jordan.  In  re,  90  Mi<-li.  .'!.  5(1  .\. 

W.  1087  99 

Jordan  v,  Ovothooth  nt  Dayton, 

4  Oh.  29."  i:!5 

Jordan    v.    Wodilvvard,    -lO    Me. 

317     411 

Joseph    V.    Rnnilolph,    71     Ala. 

4Wt,  46  Am.  Kcp.  .147   4H9 

Jonoph   V.   HidwoH,  2«   T<!i.   An. 

:iH2  (i<M 


Journeymen  Tailors,  Case  of, 
Carson  Criminal  Conspiracies, 
53    132 

Joyce  V.  East  St.  Louis,  77  111. 
156     168 

Juniata  Limestone  Co.  v.  Fag- 
ley,  187  Pa.  193,  40  Atl.  977, 
42  L.  R.  A.  442,  67  Am.  St. 
Rep.    579    706 

Judson  V.  Reardon,  16  Minn. 
431     614 

Justice  V.  Commonwealth,  81 
Va.    209    563 

Kalamazoo  Hack  Co.  v.  Soots- 
ma,  84  Mich.  194,  47  N.  W. 
667,  10  L.  R.  A.  819,  22  Am. 
St.  Rep.  693    396 

Kansas  Central  R.  Co.  v.  Coun- 
ty of  Jackson  Commissioners, 
45  Kans.  716,  26  Pac.  394  ...   631 

Kansas  Pacific  R.  R.  Co.  v. 
Mower,   16  Kan.   573    727 

Karasek  v.  Peier,  22  Wash.  419, 
61  Pac.  33 426 

Kates  V.  Atlanta  Baggage  & 
Cab  Co.,  107  Ga.  636,  34  S.  E. 
372,  46  L.  R.  A.  431   396 

Kean  v.  Driggs  Drainage  Co., 
45  N.  J.  L.  91    442 

Koller  V.  Corpus  Christi,  50 
Tox.  614,  32  Am.  Rep.  613 534 

Kellogg  V.  Howes,  81  Cal.  170, 
22  Pac.  509,  6  L.  R.  A.  588  .  .   626 

Kellum  V.  State,  66  Ind.  588..   563 

Kelly  V.  Minneapolis,  57  Minn. 
294,  59  N.  W.  304 631 

Kelly  V.  Pittsburg,  104  U.  S. 
78     688 

Kcimcbec  Water  Di.strict  v. 
W.iterville,    97    Me.    185 .552 

Kennedy's  Case,  135  Mass.  48.    107 

Ki-ntucky  Club  v.  Louisville, 
92  Ky.  309,  1 7  S.  W.  743 456 

Ke|)pel  V.  Bailey,  2  Myl.  &  K. 
517     590 

Kerr  v.  Simmons,  82  Mo.  269.  .   670 

Ki.ld  V.  Pearson,  128  TT.  S.  1, 
9  Hup.  Ct.   llvy.  6 76,  79,231 


TABLE  OF  CASES  CITED. 


Ivii 


[references  are  to  sections.] 


Kimmish  v.  Ball,  129  U.  S.  217, 

9  Sup.  Ct.  Eep.  277... 77,  136,  138 
King  V.  Davenport,  98  111.  305, 

38  Am.  Eep.  89   528 

King    V.    Dean    of    St.    Asaph, 

3  T.  E.  428,  note    471 

King  V.  Hayes,  80  Me.  206,  13 

Atl.  882    249, 523 

King  V.  Parish  of  Ampthill,  2 

B.  &  C.  847   271 

King  V.  People,  83  N.  Y.  587..  245 
King  V.  State,  58  Miss.  737,  38 

Am.  Eep.  344 223 

King  V.   Thompson,  87   Pa.   St. 

365,  30  Am.  Eep.  364 162 

Kinney,  Ex  parte,  3  Hughes  9.  697 
Kinnie  v.  Bare,   68   Mich.  625, 

36  N.  W.  672    442 

Kingsbury  v.  Kirwan,  77  N.  Y. 

612     200 

Kirtland   v.  Mayor   of   Macon, 

66  Ga.  385 161 

Klein  v.   Livingston   Club,   177 

Pa.  224,  35  Atl.  606,  34  L.  E. 

A.  94,  55  Am.  St.  Eep.  717  . .  456 
Knauer   v.    Louisville,    20   Ky. 

L.  Eep.  193,  45  S.  W.  510,  41 

L.  E.  A.  219 522 

Kneedler  v.  Lane,  45  Pa.  238. 
448, 614 

Knowack,  Ee,  158  N.  Y.  482, 
53  N.  E.  676,  44  L.  E.  A.  699.   263 

Knoxville  v.  Bird,  12  Lea. 
121    556 

Knoxville  v.  King,  7  Lea.  441.    156 

Knoxville  Iron  Co.  v.  Harbison, 
183  U.  S.  13 320,  501,  735 

Knoxville  Water  Co.  v.  Knox- 
ville, 189  U.  S.  434 571 

Koch  v.  Delaware,  Lackawan- 
na E.  Co.,  53  N.  J.  L.  256,  21 
AtL  284   409, 619 

Kochersperger  v.  Drake,  167 
111.  122,  41  L.  E.  A.  446,  47  N. 
E.  321 367 

Koehler  and  Lange  v.  Hill,  60 
Iowa  543,  14  N.  W.  738,  15  N. 
W.    609 214 


Kohn  V.  Koehler,  96  N.  Y.  362, 
48  Am.  Eep.  628    198 

Kohn  V.  Melcher,  29  Fed.  433.   710 

Kolff  V.  St.  Paul  Fuel  Ex- 
change, 48  Minn.  215,  50  N. 
W.   1036    344 

Kurtz  V.  Clausen,  77  N.  Y. 
Supp.  97   670 

La  Croix  v.  County  Commis- 
sioners of  Fairfield  County, 
50  Conn.  321,  47  Am.  Eep.  648  564 

Ladd  V.  Holmes,  40  Oregon  167, 
66  Pac.  714 483 

Laing  v.  Americus,  86  Ga.  756, 
13  S.  E.  107 162 

Lake  Eoland  Elec.  E.  Co.  v. 
Baltimore,  77  Md.  352,  26  Atl. 
510,  20  L.  E.  A.  126 579 

Lake  Shore  and  Michigan 
Southern  Eailway  Company 
V.   Smith,    173    U.    S.    684,    19 

Sup.  Ct.  Eep.  565    

63,  p.  60,  363,  393, 

Lake  Shore  and  Michigan 
Southern  E.  Co.  v.  Spangler, 
44  Ohio  St.  471,  8  N.  E.  467, 
55  Am.  Eep.  833    

Lake  Shore  and  Michigan 
Southern  Eailway  Company 
V.  State  of  Ohio  ex  rel.  Law- 
rence, 173  U.  S.  285,  19  Sup. 
Ct.  Eep.  465   73,  395,  398 

Lake  View,  Town  of  v.  Letz, 
44  111.  81 33,  141,  178 

Lake  View  v.  Bose  Hill  Ceme- 
tery Co.,  70  111.  191,  22  Am. 
Eep.    71    530 

Lambert,  Ee,  134  Cal.  626,  66 
Pac.  851,  55  L.  E.  A.  856,  23 
L.  E.  A.  737,  86  Am.  St.  Eep. 
296    252,253 

I.amon  v.  Eichard,  The  Gordon 
Hotels,  Limited,  L.  E.  1897  1 
Q.  B.  541    386 

Lamson  et  al.  v.  Boyden  et  al., 
160  111.  613,  43  N.  E.  781 54 

Lancaster  v.  McKinley  (Ind. 
App.),  67  N.  E.  947 ^CO 


715 


322 


Iviii 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Lane  v.  Baker,  12  Oh.  237....  700 
Lanfear  v.  Mayor,  4  La.  97,  23 

Am.  Dec.  477    522 

Langdon    v.    Mayor    of    New 

York,  93  N.  Y.  129 406,  576 

Lansburgh  v.  The  District  of 
Columbia,  11  App.  D.  C.  512. 

60, 293 

Lansing  v.  Smith,  8  Cow.  146..  408 
Lansing  v.  Smith,  4  Wend.  9.509,  510 
Lapsley  v.  Brashears,  4  Littell 

47    557 

I  arche  v.  Jackson,  9  Mart   (O. 

S.)   724   443 

Lasher  v.  People,  183  111.  226, 
55  \.  E.  663,  47  L.  R.  A.  802, 

75  Am.  St.  Eop.  103  

297,  493,  673 

I.iite  Corporation  of  the  Church 
of  Jesus  Christ  of  Latter  Day 
Saints  v.  United  States,  136 
l^  S.  1,  10  Sup.  Ct.  Rep.  792.. 

596,  598 

Laugel  V.  Bushnell,  197  111.  20, 
63    N.    E.    1086,   58    L.    R.    A. 

266    33,  158 

Launder  v.  Tlie  City  of  Chi- 
min, 111  111.  291,  53  Am.  Rep. 

C25    43,    93 

Lavery   v.   Ilannegan,  20   .T.   & 

S.  463   162 

Lnwton    V.    Steele,    1.52    U.    S. 

13.3,  14  Sup.  Ct.  Rej).    177 527 

Lnwton  v.  Steele,  119  N.  Y. 
226,  23  N.  E.  878.  7  L.  R.  A. 

13J.  16  Am.  St.  Kep.  813 527 

LfMirli    V.    Elwood,    3    III.    App. 

■«53     421 

F. ruder  V.  Moxtcin,  3  Wils.  461..  507 
Le   Donne,    Ke,    173   Mass.   550, 

Til  N,  E.  214   255 

Lfp  V.  Mcf'lelland,  157  Ind.  SI. 

no  N,  E.  692   2()1 

l.oep  V,  St.  LouJK,  T.  M.  &  S. 
R.  Co.,  58  Ark.  407,  25  S.  W. 
75,  23  L.  R.  A.  264,  41  Am.  St. 

Hep.   109 320,   715 

f.ec  Sinjj,  In  re,  43  Ked.  359.491,  705 


Lees  V.  United  States,  150  U. 

S.  476,  14  Sup.  Ct.  Rep.  163. .   329 
Lehew   v.   Brummell,    103    Mo. 
546,  15  S.  W.  765,  11  L.  R.  A. 

828,  23  Am.  St.  Rep.  895 698 

Legal   Tender  Cases,   12   Wall. 

457     558 

Leighton    v.    Maury,    76    Va. 

865     209 

Leisy  v.  Hardin,  135  U.  S.  100, 

10   Sup.    Ct.   Rep.    681 

76,  81,  85,  232,  295,710 

Lemly  v.   State,   69   Miss.   628, 

12  So.  559 221 

Lem      Moon     Sing     v.     United 
States,  158  U.  S.  538,  15  Sup. 

Ct.  Rep.  871 704 

Leslie   v.   Lorillard,   110   N.   Y. 
519,  18  N.  E.  363,  1  L.  R.  A. 

456     348 

Levy,    Ex    parte,    43    Ark.    42, 

51  Am.  Rep.  550 211,  672 

Lewis  V.  Fermor,  L.  R.  18  Q.  B. 

Div.  532    249 

Lewis  V.  Portland.  25  Ore.  133, 
35  Pac.  256,  22  L.  R.  A.  736, 

42  Am.  St.  Rep.  772 40G,  576 

L'llote  V.  New  Orleans,  51  La. 
Ann.  93,  20  So.  608,  44  L.   R. 

A.  90    179,  244,  68!) 

L'llote  V.  New  Orleans,  177  U. 
S.  587,  20  Sup.  Ct.  Rep.  788.. 

179,   249,689 

Libbey  v.  Downey,  5  Allen  299  275 

Libels,  Case  of,  5  Rep.  125 472 

License  Cases,   5   How.   504.... 

2,  76,  80,  81,  83,  84,  231 

License  Tax  Cases,  5  Wall.  462     37 
Lincoln    v.    Janesch,    63    Neb. 
707,   89   N.   W.    280,   56   L.   R. 

A.    762    620 

Liti.M.ln   V.  Smith,  27  Vt.  328.  . 

214,526 

Tiindscy  v.   Anniston,    10  1    Ala. 
257,   27    L.    R.    A.   436,   16   So. 

515     39(5 

Lipi)man     v.     People,    175     III. 
101,  51    N.   E.  872 298 


TABLE  OF  CASES  CITED. 


lix 


[references  are  to  sections.] 


Little    V.    Bowers,    17    Vroom. 

(N.  J.)   300    568 

Little  V.  State,  60  Neb.  749,  84 

N.  W.  248,  51  L.  E.  A.  717.  . .  133 
Little  Eock  and  Ft.   Smith   E. 

Co.   V.   <)ppenheimer,   64   Ark. 

271,  43  S.  W.  145,  44  L.  E.  A. 

353     690 

Little    Eock,    etc.,    E.     Co.     v. 

Payne,    33    Ark.    816,   34   Am. 

Eep.    55    628 

Loan  Association  v.  Topeka,  20 

Wallace   655    23 

Lobrano    v.    Nelligan,    9    Wall. 

295     257 

Locke 's  Appeal,  72  Pa.  St.  491, 

13  Am.  Eep.  716 217 

Lockwood,  In  re,  154  U.  S.  116, 

14  Sup.  Ct.  Eep.  1082 702 

Loesch    V.    Koehler,    144    Ind. 

278,   41   N.   E.   326,   43   N.   E. 

129,  35  L.  E.  A.  682 249,  523 

Lohman  v.  State,  81  Ind.  15..  198 
Lonas  v.  State,  3  Heisk.  287..  697 
Looker  v.  Maynard,  179  U.  S. 

46,  21  Sup.  Ct.  Eep.  21.  .  .  .363,  579 
Lord  V.  Langdon,  91   Me.  221, 

39  Atl.  552    426 

Lord    V.    Litchfield,    36    Conn. 

116,  4  Am.  Eep.  41   568 

Lord    V.    Steamship    Company, 

102  U.  S.  541   66 

Lott  V.  Sweet,  33  Mich.  308..  252 
Lottery     Case      (Champion     v. 

Ames),  188  U.  S.  321 

58,  65,  66,  198,  236 

Lough  et.  al.  v.  Outerbridge  et 

al.,   143   N.  Y.   271,   38   N.   E. 

292,  25  L.  E.  A.  674,  42  Am. 

St.  Eep.   712    348, 389 

Loughbridge  v.  Harris,  42  Ga. 

500     412 

Louisiana  v.  Texas,  176  U.  S. 

1,  20  Sup.  Ct.  Eep.  251 

-..71,   82,   139,  488 

Louisiana  State  Board  of  Health 

V.   Standard   Oil   Co.,   107   La. 

713,  31  So.  1015 622 


Louisville  and  Nashville  E.  Co. 
V.  Baldwin,  85  Ala.  619,  7  L. 
E.  A.  266,  5  Sou.  311 622 

Louisville  and  Nashville  Eail- 
road  Company  v.  Common- 
wealth, 99  Ky.  132,  25  S.  W. 
129,  33  L.  E.  A.  209,  59  Am. 
St.  Eep.  457  28,  384 

Louisville  &  Nashville  E.  Co. 
v.  Kentucky,  161  U.  S.  677,  16 

Sup.   Ct.   Eep.  523 

342,  362,  363,   717 

Louisville  and  Nashville  E.  Co. 
V.  Kentucky,  183  U.  S.  503 73 

Louisville,  E.  and  St.  L.  Con- 
sol.  E.  Co.  v.  Wilson,  132  Ind. 
517,  32  N.  E.  311,  18  L.  E.  A. 
105 389 

Louisville,    New     Orleans    and 

Texas    Eailway    Company    v. 

Mississippi,  133  U.  S.  587,  10 

Sup.  Ct.  Eep.  348 73,  699 

Louisville  City  Eailway  Co.  v. 

Louisville,  71  Ky.  415 658 

Love    v.    Judge    of    Eecorder's 

Court    of    Detroit,    128    Mich. 

545,  87  N.  W.  785,  55  L.  E.  A. 

618     644 

Lovell    V.    Seeback,    45    Minn, 

465,  48  N.  W.  23,  11  L.  E.  A. 

667    271,491 

Low  v.  Eees  Printing  Com- 
pany, 41   Neb.  127,  59  N.  W. 

362,  24  L.  E.  A.  702,  43  Am. 

St.  Eep.  670 30,  316,  317,  735 

Lowe  V.  Conroy  (Wis.),  97  N. 

W.   942    521 

Lowe,  In  re,  54  Kans.  757,  39 

Pac.  710,  27  L.  E.  A.  545.  .641,  670 
Lowell  et  al.  v.  City  of  Boston, 

111    Mass.   454,    15   Am.    Eep. 

39 23,    268,    412 

Lowry    v.    Eainwater,    70    Mo. 

152,  35  Am.  Eep.  420   526 

Luck   V.   Sears,    29    Oreg.    421, 

44  Pac.  693,  54  Am.  St.  Eep. 

804     455 


Ix 


TABLE  OF  CASES  CITED. 


[references  are 

Lyman  v.  Boston  and  Worces- 
ter R.  Co.,  4  Cush.  288 630 

Lynch   v.  Hubbard,   101   Mich. 

43,  59  X.  W.  443   620 

Lynch,  Re,  5  Paige  (N.  Y.)  120..  227 
Lynn  v.  State,  33  Tex.  Cr.  153, 

25  S.  W.  779   421 

McAllister  v.  Haden,  2  Campb. 

438     195 

McAllister    v.    State,    72    Md. 

.190,  20  Atl.  143   284 

McCall  V.  California,  136  U.  S. 

104,  10   Sup.   Ct.   Rep.  881... 

73,  p.  70,  74,  79,  295,  717 

McCann   v.   Commonwealth,   198 

Pa.  St.  509,  48  Atl.  470 284 

McCarthy,    Ex    parte,    72    Cal. 

384,   14   Pac.   96 99 

Mr-Carthy  v.  Chicago,  53  111.  38  172 
McCarthy   v.   Syracuse,    46    N. 

Y.    194 161 

McCarver,    Ex   parte,    39    Tex. 

Cr.    App.   448,   46   S.   W.   936, 

42   L.   R.   A.  587,   73   Am.   St. 

Rop.    947    ..." 158,  259 

MfCloskcy  V.  Kreling,  76  Cal. 

511    644 

M.-Combs  V.  Akron,  15  Oh.  475  509 
McConico   V.   Singleton,   2   Mills 

(8.   C.)   244    ns 

^'   'onnoll    V.    Pedigo,    92    Ky. 

.  IS  S.  VV.  15 .396 

McCormick  v.  Tate,  20  Til.  334  444 

Mcf'rfady    v.    Virginia,    94    TT. 

S.   391    712 

M<-Cr«.ary  v.  State.  73  Ala.  480  232 
McCullough  V,  Urown,  41  S.  C. 

220,  19  K.  E.  458.  23  L.  H.  A. 

110    219, 6()(i 

''   ri.-miolii    V.    J.    .T.    Connelly 

..•  ••<..  (WuBh.;,  71  I'ac.  37..  287 
MrDermott    v.    Union     Credit 
Co..   7«    Minn.   84,    78-  N.    W. 

■■•'.  79  N.  W.  073 .301 

'    '        M     V.     City     of     Red 

..    13   Minn.  3H 531 

Mf-DvifTeo    V.    Portland    &c    R. 


TO   SECTIONS.] 

Co.,  52  N.  H.  430,  13  Am.  Rep. 

72    389,  395 

MeGann  v.  People,  194  111.  526, 

62   N.  E.  941 162,  427 

McGowan   v.   Stark,   1   Nott   & 

McC.  387,  9  Am.  Dec.  712 668 

McGrew  v.  City  Produce  Ex- 
change, 85  Tenn.  572,  4  S.  W. 

38,  4  Am.  St.  Rep.  771 201 

McGuire  v.  State,  42  Ohio  St. 

530    232 

McHugh   V.    McCole,     97     Wis. 
166,   72   N.   W.   631,  40   L.   R. 
A.  724,  65  Am.  St.  Rep.  106n.  369 
Mclntyre   v.   Weinert,   195   Pa. 

52,  45  Atl.  666 301 

McKenna,  Ex  parte,  126  Cal. 
429,  58  Pac.  916 58,  p.  53 

McKeon  v.  New  York,  New  Ha- 
ven, etc.  R.  Co.  (Conn.),  53 
Atl.   656    518 

McKinney  v.  Salem,  77  Ind. 
213    564 

McLaren  v.  Pennington,  1 
Paige  101    363 

McLaughlin  v.  Citizens  Bldg. 
Loan  Association,  62  Ind. 
264   304 

McLean,  County  of  v.  Humph- 
reys,   104  111.   378 262,  263 

McRee  v.  Wilmington  etc.  R. 
Co.,  47   N.   C.   186 681 

McRcynolds  v.  Smallhouse,  71 
Ky.    447 661 

^IcRoberts  v.  Washl)urne,  10 
Minn.   23 668 

McVcy  V.  Barker,  92  Mo.  App. 
498     635 

Macon  etc.  R.  Co.  v.  Vaughn, 
IS  Ga.  464 628 

Maddox,  Re,  93  Md.  727,  50 
Atl.  487,  55  L.  R.  A.  298 702 

Madison,  City  of,  v.  Mayers, 
97   Wis.   .399    408 

Magee  v.  Augusta,  5  Ga.  546.  168 
Magcr  V.  Grima,  8  How.  490..  706 
Magner  v.  People,  97  111.  320.  .   419 


TABLE  OF  CASES  CITED. 


Ixi 


[references  are  to  sections.] 


Maguire,    Ee,    57    Cal.    604,    40 

Am.   Rep.   125 703 

Maier,   Ex  parte,  103  Cal.  476, 

37  Pac.  402,  42  Am.  St.  Rep. 

129    419,420 

Maize  v.  State,  4  Ind.  342 217 

Malloy   V.   La   Crosse  Abattoir 

Co.,    80    Wis.    170,    49    N.    W. 

1071    626 

Manchester    v.    Massachusetts, 

139  U.  S.  240,  11  Sup.  Ct.  Rep. 

559   420 

Mangan  v.  State,  76  Ala.  60..  93 
Manufacturers'  Gas  &  Oil  Co. 

V.  Indiana  Gas  &  Oil  Co.,  155 

Ind.  461,  57  N.  E.  912,  50  L. 

R.  A.  768 422 

Mapstrick   v.   Ramge,    9     Neb. 

390,  2  N.  W.  739,  31  Am.  Eep. 

415    333,335 

Marchant    v.    Pennsylvania    R. 

Co.,  153  U.  S.  380,  14  Sup.  Ct. 

Rep.  894   510 

Marks,  Ex  parte,  64  Cal.  29,  28 

Pac.  109,  49  Am.  Rep.  684...  104 
Marmont  v.  State,  48  Ind.  21.  .   456 

Marquis,  Re,  85  Mo.  615 255 

Martin  v.  Board  of  Education, 

42  W.  Va.  514,  26  S.  E.  348.  .  698 
Martin  v.  State,  59  Ala.  34...  456 
Massachusetts    National    Bank 

V.  Shinn,  163  N.  Y.  360,  57  N. 

E.  611 371 

Master  Stevedores  Association 

V.  Walsh,  2  Daly  1 331 

Mather   v.   Chapman,  40   Conn. 

382    , 408 

Matthews  v.  Associated  Press, 

136  N.  Y.  333,  32  N.  E.  981,  32 

Am.  St.  Rep.  741 345 

May   V.    New   Orleans,    178    IT. 

S.  496,  20  Sup.  Ct.  Rep.  976.  .  81 
Mayor  v.  Lord,  17  Wend.  285.  534 
Mayor  of  Hudson  v.  Thorne,  7 

Paige    (N.   Y.)    261 643 

Mayor   of  Knoxville   v.   Knox- 

ville    Water    Co.,     107     Tenn. 

647,  64  S.  W.  1075 571 


Mayor  of  Monroe  v.  Hoffman, 
29   La.   Ann.   651 141 

Mayor  of  New  Iberia  v.  Fonte- 
lieu,  108  La.  460,  32  Sou.  369..  620 

Mayor  of  New  York  v.  Canard 
S.  S.  Co.,  61  Hun  346,  15  N. 
Y.  Supp.  904 163 

Mayor,  Aldermen  and  Com- 
monalty of  City  of  New  York 

V.   Miln,   11  Peters   102 

2,  45,  271,  705 

Mayor  &c.  v.  Starin,  106  N.  Y. 
1,  12  N.  E.  631 668 

Meadowcroft  v.  People,  163  111. 
56,  45  N.  E.  303,  35  L.  R.  A. 
176,  54  Am.  St.  Eep.  447 731 

Meeker  v.  Van  Rensselaer,  15 
Wend.   397 520 

Meffert  v.  State  Board  of  Medi- 
cal Registration  (Kans.),  72 
Pac.    247 546 

Meister  v.  Moore,  96  U.  S.  76.   241 

INIelton  V.  Mayor  of  Moultrie, 
114  Ga.  462,  40  S.  E.  302 564 

Memphis  v.  Winfield,  27  Tenn. 
707    691 

Mercein  v.  People,  25  Wend. 
(N.  Y.)  64,  35  Am.  Dec.  653.  .   260 

Meredith  v.  New  Jersey  Zinc 
&  Iron  Co.,  55  N.  J.  Eq.  211, 
37   Atl.   539 353 

Merritt  v.  People,  169  111.  218, 
48  N.  E.  325 420 

Messenger  v.  State,  25  Neb. 
674,  41  N.  W.  638 389,  695 

Metropolitan  Board  of  Excise 
V.  Barrie,  34  N.  Y.  657 564 

Mette  V.  McGuckin,  18  Neb. 
323,  25  N.  W.  338 710 

Mette  V.  McGuckin,  U.  S.  Rep. 
L.  Ed.  Bk.  37,  p.  934  (not 
officially  reported)    710 

Meyer  v.  Teutopolis,  131  HI. 
55*2,  23  N.  E.   651 166 

Meyer  v.  Richmond,  172  U.  S. 
82,  19  Sup.  Ct.  Rep.  106 510 

Meyers  v.  Baker,  120  111.  567, 


Ixii 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


57G 


521 
275 


105 
412 


12  N.  E.  79,  60  Am.  Eep.  580 

175,  336,  464 

Michigan  Sugar  Co.  v.  Dix,  124 
Mich.  674,  56  L.  R.  A.  329, 

83  Am.  St.  Eep.  354 428 

Milhau  V.  Sharp,  27  N.  Y.  611, 

84  Am.  Dec.  314 576 

Millar  v.  Taylor,  4  Burr  2303.  .   664 
Miller    v.    Ammon,    145    U.    S. 

421,  12  Sup.  Ct.  Eep.  884 205 

Miller  v.  Burch,  32  Tex.  208,  5 

Am.  Eep.  242 525 

Miller  v.  Craig,  11  N.  J.   Eq., 

175 

Miller    v.    Horton,     152     Mass. 

.540,  26  N.  E.  100,  10  L.  E.  A. 

116,  23  Am.  St.  Eep.  850 

Miller  v.  Post,  1  Allen  434 

Miller  v.   New   York,   15  Wall. 

478 362,  363,  599 

Miller  v.  State,  3  Oh.  St.  475. .   635 
Miller  v.  State,  149  Ind.  607,  49 

N.  E.  894,  40  L.  E.  A.  109... 
Miller  v.  Troost,  14  Minn.  365 
Millett   V.   The  People   of   the 

State  of  Illinois,  117  111.  294, 

7  X.  E.  631,  57  Am.  Eep.  869 
44,  275,  394,  611 

Millikan     v.    Weatherforfl.    54 

Tox.  388,  38  Am.  Rep.  629 245 

Mills    V.    (Unrniy    of    St.    Clair, 

8  How.  569 668,  701 

MillH  V.  County  of  St.  Clair,  4 

III.  53    668,  701 

MillH   V.    County    of   St.    Clair, 
7  III.  197....." 

MillH  V.  Unite*]  StatoH,  46  Ferl. 
738.  12  I,.  U.  A.  073 

Milne  v.  Dnvidnon,  .1  Mort   (\. 
H. )   409    

Milwnnkoe    v.    OrosH,    21     Wis. 

211.   91    Am.    n.c.    172 

Milwniikoo     IndiiMrinl     School 

V.  Milwtnikor  f'ounty,  40  Wis. 

32H.   22    Am.    Uop.   702 261 

Milwnukeo  MnHonn  and  B.  Ah- 

■neiniinn     v.     NiezerowHki,     95 


587 


409 


in 


667 


Wis.  129,  70  N.  W.  166,  37  L. 

R.  A.  127,  60  Am.  St.  Rep.  97.  344 
Minneapolis  Mill  Co.  v.  Board 

of    Water    Commissioners,    56 

Minn.  485,  58  N.  W.  33 408 

Minneapolis   and    St.    Louis   R. 

R.  Co.  V.  Beckwith,  129  U.  S. 

26,  9  Sup.  Ct.  Rep.  207 637,  727 

Minneapolis   and   St.   Louis  E. 

Co.  V.  Emmons,  149  U.  S.  364, 

13  Sup.  Ct.  Rep.  870 727 

Minneapolis  &  St.  Louis  E.  Co, 

V.  Minnesota,  186  U.  S.  257 .  . 

394,  5B1 

Minnesota  v.  Barber,  136  U.  S. 

313,  10  Sup.  Ct.  Eep.  862... 77,  138 
Minturn  v.  Larue,  23  How.  435.  678 
Mississippi  Society  of  Arts  etc. 

V.   Musgrove,  44  Miss.  820,   7 

Am.  Rep.   723 579 

Missouri   v.   Illinois,   180  U.   S. 

208    139 

Missouri    (Bowman)    v.    Lewis, 

101   IT.  S.  22 497,  688 

Missouri,    Kansas     and     Texas 

Railway    Company    v.    Haber, 

169  IT.  S.  613,  18  Sup.  Ct.  Rep. 

488    77,   136,   138,  634 

Missouri  ex  rel.  Laclede  Gas- 
light Co.  V.  Murphy,  170  IT.  S. 

78,  18  Sup.  Ct.  Rep.  505 362 

Missouri     Pacific      R.      Co.     v. 

Harrelson,    44    Kans.    253,    24 

Pac.  465 629 

Missouri     Pacific     E.     Co.     v. 

Humes,  115  IT.  S.  512,  6  Sup. 

Ct.  Rep.  110.298,621,629,637.727 
Missouri   Pacific   R.   R.    Co.    v. 

Mackey,  127  U.  S.  205,  8  Sup. 

Ct.   Rep.   1161 501,727 

Missouri  Pacific  R.  Co.  v,  Ne- 
braska, 164  U.  S.  403,  17  Sup. 
Ct.  Rep.   1.30 397 

Mitchel  V.  Reynolds,  1  P.  W. 
181     .']43,  34S 

Mobile,  the  City  of,  116  Fed. 
212    451 


TABLE  OF  CASES  CITED. 


Ixiii 


[references  are  to  sections.] 


Mobile   V.   Yuille,   3    Ala.    137, 

36  Am.  Dec.  441 275 

Mobile  etc.  E.  Co.  v.  Williams, 

53  Ala.  595 628 

Mobile    &    Ohio    E.    E.    Co.    v. 

People,  132  111.  559,  24  N.  E. 

643,  22  Am.  St.  Eep.  556 395 

Mogul   Steamship   Company   v. 

McGregor,    Gow    &    Company, 

L.  E.  1892  App.  Cas.  25 345 

Monongahela  Navigation  Co.  v. 

United  States,  148  U.  S.  312, 

13  Sup.  Ct.  Eep.  622 506 

Montana  Union  E.  Co.  v.  Lang- 

lois,   9   Mont.   419,   18  Am.   St. 

Eep.    745 396 

Monterey    Co.    v.    Gushing,     83 

Cal.  507,  23  Pac.  700 427 

Montgomery  v.  Hutchinson,  13 

Ala.    573 520 

Moody  V.   McClelland,   39   Ala. 

45,  84  Am.  Dec.  770 424 

Moor   V.    Veazie,    32    Me.    343, 

52   Am.   Dec.   655 661 

Moore  v.  Indianapolis,  120  Ind. 

483,  22  N.  E.  424 564 

Moore  v.   State,   48   Miss.   147, 

12  Am.  Eep.  367 563 

Moore  v.  Monroe,  64  la.  367, 

20  N.  W.  475,  52  Am.  Eep. 

44  463 

Moran  v.  Moran,  104  la.  216, 

73  N.  W.  617,  39  L.  E.  A.  204, 

65  Am.  St.  Eep.  443 369 

Morford    et    al.    v.    Board    of 

Health  of  Asbury  Park,  61  N. 

J.  L.  386,  39  Atl.  706 34 

Morgan,  In  re  Application  for 

Writ    of    Habeas    Corpus,    26 

Col.  415,  58  Pac.   1071,  47  L. 

E.  A.  52,  77  Am.  St.  Eep.  269.. 
...  .30,  131,  144,  146,  155,  317,  500 
Morgan  v.  King,  35  N.  Y.  454, 

91   Am.  Eep.  58 404 

Morgan's   Steamship   Company 

V.  Louisiana  Board  of  Health 

et   al.,   118   U.   S.   455,   6   Sup. 

Ct.  Eep.  1114... 71,  135,  705 


Morgan,  Superintendent  of 
Cincinnati  Workhouse  v. 
Nolte,  37  Ohio  St.  23,  41  Am. 
Eep.    485 96 

Morley     v.     Lake     Shore     and 
Michigan  Southern  E.  Co.,  146      " 
U.    S.    162,    13    Sup.    Ct.    Eep. 
54   555 

Mormon  Church  v.  United 
States,  136  U.  S.  1,  10  Sup. 
Ct.  Eep.   792 596,598 

Morris  et  al.  v.  City  of  Co- 
lumbus, 102  Ga.  792,  30  S.  E. 
850,  42  L.  E.  A.  175,  66  Am. 
St.  Eep.  243 63,  p.  59,  144,  447 

Morris  Eun  Coal  Co.  v.  Bar- 
clay Coal  Co.,  68  Pa.  St.  173, 
8  Am.  Eep.  159 347 

Moses  V.  United  States,  16 
App.  D.  C.  428,  50  L.  E.  A. 
532   177 

Mosler  et  al..  Ex  parte,  8  Oh. 
C.   C.  324 40,292 

Mt.  Pleasant  v.  Clutch,  6  Iowa 
546   288 

Mt.  Vernon  Bank  v.  Sarlls,  129 
Ind.  201,  28  N.  E.  434,  13  L. 
E.  A.  481,  28  Am.  St.  Eep. 
185   538 

Mouse  Case,  12  Eep.  63 534 

Muetze  v.  Tuteur,  77  Wis.  236, 
46  N.  W.  123,  9  L.  E.  A.  86, 
20   Am.   St.  Eep.   115 301 

Mugler   V.    Kansas,    123    U.    S. 

623,   8   Sup.   Ct.   Eep.   273 

134,   213,  455,  540,  564 

Mullen  V.  Peck,  49  Oh.  St.  447, 

31  N.  E.  1077... 626 

Muller  V.  Buncombe  County,  89 

N.    C.    171 652 

Munger  v.   Tonawanda  etc.  E. 

Co.,  4  N.  Y.  349,  53  Am.  Dec. 

384   n 629 

Municipal    Fuel    Plants,    In    re 

(Mass),  66  N.  E.  25 23,  666 

Munn  V.  Illinois,  94  U.  S.  113 

.  .  63,  p.  58,  372,  379,  384,  417,  688 


IXIV 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 
Munro  v.  Watson,  51  J.  P.  660, 


57  L.  T.  366 643 

Murdock   V.   Stickney,  8   Cush. 

113   411,  412,  508 

Murpln'  V.  Commonwealth,  172 

Mass."  264,   52    N.    E.    505,    43 

L.  K.  A.  154,  70  Am.  St.  Eep. 

>J66   105 

Murphy  v.  Leggett,  164  N.  Y. 

121,  58  N.  E.  42 162,172 

Murjihy   v.    Rogers,    151    Mass. 

lis,  24  X.  E.  35 lf)2 

Murray    v.    Menefee,   20   Ark. 

.561 668 

Musgrove  v.  St.  Louis  Church, 

10  La.  Ann.  431 178 

Myers  v.  Field,  146  111.  50,  34 

N.  E.  424 567 

Myii.-k  V.  Battle,  5  Fla.  345..    555 
Myrick    v.    Brawley,    33    Minn. 

377,  23  N.  W.  549 363 

Nash   V.  Page,  80  Ky.  539,  44 

Am.    Rep.    490 390 

Nasliville  and   Chattanooga  R. 

\i.    Co.    V.    Peacock,    25    Ala. 

li*J9   628 

Nashville.  Chattanooga  and  St. 

Louis    Railway    v.    Alal)aiiia, 

128  U.  S.  96,  9  Sup.  Ct.  Rep. 

2« 73,    622 

Natal    V.    Louisiana,    139    U.   S. 

621,  11  Sup.  Ct.  Rep.  636 667 

Nathan  v.  State  of   Louisiana, 

H   How.  73 71,  7ti 

National     I'rotoclivc     Assoctia- 

tion  of  Steam  Fitters  v.  Ciim- 

niing,  170  N.  Y.  315,  63  N.  E. 

360.  HH  Am.  St.  Hep.  6)8.. 333,  334 
N<'l)rn«ka     Toli-grajjh      Co.     v. 

HtJitp,  M  No}..  fi27,  70  N.  W. 

171,  45  L.   U.   A.    113 385 

*     ■  V.  C.Mlfr.-v,   12  IM.  20.  .    IC'J 

V.     P.nplo,    .13     111.    39(» 

488.    691 

Nolnon    V.   Htafi-    Hoard    Health, 

22    Ky.    I,.     Rf-p.    438,    57    S. 

W.   501,  50    L.    R.    A.    383.... 

133,    153.  647 


Nesbit  V.  Trumbo,  39  111.   110, 

89  Am.  Dec.   290 427 

Nester  v.  Continental  Brewing 

Co.,  161  Pa.  473,  29  Atl.  102, 

24   L.   E.   A.   247,   41   Am.   St. 

Rep.    894 344 

Nettles  V.  Sommervell,   6  Tex. 

Civ.  App.  627,  25  S.  W.  658.  .   301 
Newark    &c.    Ey.    Co.    v.    Hunt, 

50  N.  J.  L.  308,  12  Atl.  697 .  .   521 
New    Castle   v.    Cutler,    15   Pa. 

Super.  Ct.  612,  625 288,  732 

Newcomb    v.    Smith,    2    Pinn. 

(Wis.)   131 412 

New  England   Trout   etc.   Club 

V.  Mather,  68  Yt.  338,  35  Atl. 

323,  33  L.  R.  A.  569 518 

New    England    Express    Co.    v. 

Maine  Central  R.  Co.,  57  Me. 

188   395 

Newman,  Ex  parte,  9  Cal.  502.    185 
New      Jersey      v.      Wilson,      7 

Cranch    164 561,  568 

New  Jersey  v.  Yard,  95  U.   S. 

104 568 

New  Orleans  v.  Faber,  105  La. 

208,  53  L.  R.  A.   165,  83  Am. 

St.  Rep.  232 530,565,667,670 

New    Orleans    v.    (it.    Southern 

Telejdione  and  Telograpli  Co., 

40   La.   Ann.   41,   3   So.   533,   8 

Am.   St.   Rep.   502 576 

Now     Orleans      v.      St.     TiOuis 

Church,  11   La.  Ann.  244.. 178,  565 
New   Orleans   v.    Koo,    107    La. 

762,  31  Sou.   nil  4   622 

New  Orleans  \.  St.-id'ord,  27  L:i. 

Ann.  -117,  21    Am.  Rep.  563...    565 
Now   Orleans  (!aa   Comprniy    \'. 

Louisiana  Light  C()in|)aiiy,  115 

U.  S.  650,  <;  Sup.  ('1.  Ri'|..  L'52 

22,  3(;;{,  577,  669,  67'.) 

New     Orleans     Wafer     Works 

Co.    V.    Rivers.    1  15    l'.    S.    (".7 1, 

6  Sup.   Ct.    K'ep.   273. 679 

Newport    etc.     I'.ridge      Co.      v. 

United   States,    105    V.   S.    170 

106,    576 


TABLE  OF  CASES  CITED. 


Ixv 


[references  are  to  sections.] 


New  York,  see  also  Mayor. 

New  York,  In  re  City  of,  168 
N.   Y.   134,   61   N.   E.   158 408 

New  York  v.  Herdje,  68  App. 
Div.  374,  74  N.  Y.  Supp.  104.   556 

New  York  v.  Miln,  11  Peters 
102    2,45,271,705 

New  York  &  Chicago  Grain  & 
Stock  Exchange  v.  Chicago 
Board  of  Trade,  127  111.  153, 
19  N.  E.  855,  48  L.  E.  A.  568, 
11  Am.  St.  Kep.  107 386 

New  York  Board  of  Under- 
writers V.  Whipple,  37  N.  Y. 
Suppl.    712 615 

New  York  &  New  England  E. 
Co.  V.  Board  E.  E.  Commission- 
ers, 162  Mass.  81,  38  N.  E. 
27   427 

New  York  and  New  England 
E.  E.  Co.  V.  Bristol,  151  U.  S. 
556,  14  Sup.  Ct.  Eep.  437... 
548,  556,  631 

New  York  and  New  England 
E.  Co.  V.  Waterbury,  60  Conn. 
1,  22  Atl.  439 631 

New  York,  Lake  Erie  and 
Western  E.  Co.  v.  Pennsyl- 
vania, 153  U.  S.  628,  14  Sup. 
Ct.  Eep.  952 576 

New  York,  New  Haven  and 
Hartford  Eailroad  Company 
V.   New  York,   165  U.   S.   628, 

17   Sup.    Ct.   Eep.    418 

73,    134,    135,  727 

New  York,  New  Haven  and 
Hartford  E.  Co.  v.  Scovill,  71 
Conn.  136,  41  Atl.  246,  42  L. 
E.  A.  157,  71  Am.  St.  Eep. 
159   396 

New  York  Sanitary  Utilisation 
Co.  V.  Department  of  Public 
Health,  61  App.  Div.  106,  70 
N.  Y.  Suppl.  510 530 

Newson  v.  Galveston,  76  Tex. 
559,  13  S.  W.  368,  7  L.  E.  A. 
797   667 


Newton  v.  Belger,  143  Mass. 
598,  10  N.  E.  464 643,  644 

Nickerson  v.  Boston,  131  Mass. 
306    617 

Nightingale,  Re,  11  Pick.  168..    173 

Nixson  V.  Eeed,  8  S.  D.  507, 
67  N.  W.  57,  32  L.  R.  A.  315.   668 

Noel  V.  People,  187  111.  587, 
58  N.  E.  616,  52  L.  E.  A.  287, 
79  Am.  St.  Eep.  238.  .149,  643,  650 

Nordenfeldt  v.  Maxim-Norden- 
feldt  Co.,  L.  E.  1894  App.  Cas. 
535   348 

Norfolk,  Duke,  Case  of,  3  Ch. 
Cas.  1 367 

Norris  v.  Farmers'  Teamsters 
Co.,  6  Cal.  590,  65  Am.  Dec. 
535   668 

North  V.  Board  of  Trustees  of 
University  of  Illinois,  137  111. 
296,  27  N.  E.  54 463 

North  V.  The  People  of  State 
of  Illinois,  139  111.  81,  28  N. 
E.    966 87,90 

North  Chicago  E.  Co.  v.  Lake 
View,  105  111.  207,  44  Am. 
Eep.  788 158 

North  Dakota  v.  Nelson  Coun- 
ty, 1  N.  D.  88,  45  N.  W.  33, 
26  Am.  St.  Eep.  609 268 

North  Springs  Water  Co.  v. 
City  of  Tacoma,  21  Wash.  517, 
58  Pac.  773,  47  L.  E.  A.  214.  .   677 

Northern  Central  E.  Co.  v. 
Baltimore  E.  Co.,  46  Md.  425.   631 

Northern  Pacific  E.  Co.  v. 
Washington,  142  U.  S.  492...   395 

Northrup,  Ex  Parte,  41  Or.  489, 
69    Pac.    445    735 

Northwestern  Fertilizing  Com- 
pany V.  Hyde  Park,  97  U.  S. 
659    '.24,  565 

Northwestern  Telephone  Ex- 
change Co.  V.  Minneapolis,  81 
Minn.  140,  83  N.  W.  527,  86 
N.  W.  69,  53  L.  E.  A.  175...   575 

Norwalk  Street  Eailway  Com- 
pany's Appeal,  69  Conn.  576, 


Ixvi 


TABLE  OF  CASES  CITED. 
[references  are  to  sections.] 


37  Atl.   lOSO,  38   Atl.   708,   39 

L.    K.    A.    794 385 

Norwich  Gas  Light  Co.  v.  Nor- 
wich  City   Gas  Co.,   25   Conn. 

19   574 

Notfs  Case,  11  Me.  208.  ..  .98.  244 
Northern     Pacific     R.     Co.     v. 

Washington,    142    U.    S.    492, 

12  Sup.  Ct.  Rep.  283 395 

Nunes   v.   State   of   Georgia,    1 

Ga.  243 90 

Nutting    V.    Massachusetts,    183 

r.  S.  5.")3 716 

Oakdalc  Manufacturing  Co.  v. 

Caret,    18    K.    I.    484,    28    Atl. 

973,  23  L.  R.  A.  639,  49  Am. 

St.    Rep.    784 353,  716 

O'Connor  v.  Pittsburgh,  18  Pa. 

187   510 

«•:',, or     V.     Young,    5    Yerger 

V  r.'nn.)  320,  26  Am.  Dec.  268.      20 
Og'len  V.  Saunders,  12  Wheat. 

213 306,  378,  558 

O'Leary,  Ex  parte,  65  Miss.  80, 

3  So.  144,  7  Am.  St.  Rop.  640.      33 
O'Ncil  V.  Hehanna,  182  Pa.  236, 

37   Atl.  843,  38  L.  R.  A.  382, 

01   .\m.  St.  Rop.  702 333 

Ohio   V.    NelT,   52   Oh.   St.   375, 

40   N.   K.   720 362,599 

Ohio  V.  Thomas,  173  U.  S.  276.  .      67 
Ohio  nml  MiHHisHi|»pi    H.  Co.  v. 

Lackey,  78  111.  55,  20  Am.  Rep. 

259    612 

Ohio  &  Mnl.ilo  R.  Co.  V.  People, 

120  III.  200,  11  N.  E.  347 :J95 

Ohio  Life  InHurnnce  and  Trust 

Co,  V.  Diol.olt,  16  How.  416,.    676 
Ohio  Oil  Co,  V.  Indiana,  177  V. 

H.  190.  20  Sup.  Ct.  Rop.  576.  .    422 

'  RuperviflorH,    16 


Old  Colony  R.  Co.  v.  Tripp,  147 
Mrnw.  ari,  17  N,  K.  89.  9  Am. 
«t.  Rrp,  -  

Olive    V.    V.iii    r.ittcii,    7    Tex. 


306 


.'!ir, 


Olmstead   v.   Camp,    33     Conn. 

532,  89  Am.  Dec.  221 412 

Olympia,    City   of    v.    Mann,    1 

Wash.  389,  12  L.  R.  A.  150...  .141 
Opinion  of  Justices,  21  Col.  27, 

39  Pac.  431 275 

Opinion  of  Justices,  155  Mass. 

598,  30  N.  E.   1142,   15   L.   E. 

A.    809 23,666 

Opinion  of  Justices,  163  Mass. 

589,  40  N.  E.   713 735 

Opinion  of  Justices,  165  Mass. 

599,  43  N.  E.  927,  32  L.  R.  A. 
350    701 

Oregon  R.  and  N.  Co.  v.  Smal- 

ley,  1  Wash.  St.  206,  23  Pac. 

1008,  22  Am.  St.  Rep.  143 629 

Oren,  Attoruey  General,  v.  Ab- 
bott, 121  Mich.  540,  SO  N.  W. 

372.  47  L.  R.  A.  92 701 

Orient  Insurance  Co.  v.  Daggs, 

172  U.  S.  557,  19  Sup.  Ct.  Rep. 

281     400,  501 

Osborn    v.    Knife    Falls    Boom 

Corporation.  32  Minn.  412,  21 

N.  W.  704,  50  Am.  Rep.  590.    408 
Osborn  v.  Hart,  24  Wis.  89,   1 

Am.   Rep.   161 427 

Otis  V.  Parker,  187  U.  8.  606..59,  201 
Oviatt  V.  Pond,  29  Conn.  479..  526 
Owcnsboro    and    X.    H.    Co.    v. 

Todd.    91    Ky.    175,    15    S.    W. 

r,r,,  11   L.   Iv'.  \.  L's.-, G29 

Pace    V.    Alabama,    106    V.    S. 

583,  1  Sup.  Ct.  Rep.  637 697 

Pacific  Mail  S.  S.  Co.  v.  .b.lif(>, 

2  Wall.    150    117 

Packanl    v.    h'yd.T.    Ml     Mass. 

4  10,  11  N.  E.  578,  59  Am.  i:.-)). 

101    405 

Pacdtor   V.    Welsted,    2    Sid.   39,   . 

Ill     427 

Parkott    Company    v.    Catlctta- 

burg,  105  U.  H.  559 72 

Palairot'H    Appeal,    67    Pa.    St. 

179,  5  Am.   Rop.  450 370,  589 

Palmer    v.    Tingle,    .55    Oh.    St. 
123,  45   N.   E.  313 626 


TABLE  OF  CASES  CITED. 


Ixvii 


[references  are  to  sections.] 


Palmer  v.  Way,  6  Col.  106 620 

Paris,    Trustees    of    Town    of 

V.  Berry,  25  Ky.  483 620 

Park  and  Sons  Co.  v.  National 

Wholesale  Druggists  Ass.,   175 


N.  Y.  1,  67  N.  E.  136.. 


346 


Parker  et  al.  v.  Common- 
wealth, 178  Mass.  199,  59  N. 
E.  634 23,  180,  514 

Parker  v.  Commonwealth,  6 
Pa.  St.  507,  47  Am.  Dec.  480.    217 

Parker  v.  Kaughman,  34  Ga. 
136   614 

Parker  v.  Metropolitan  E.  E. 
Co.,  109   Mass.   506 363 

Parker  v.  People,  111  111.  581, 
53  Am.  Dee.  643 407,418 

Parker  v.  Otis  and  Gassman, 
130  Cal.  322,  62  Pac.  571.. 59,  201 

Parks  V.  State  (Ind.),  64  N. 
E.  862   133,  711 

Parrott,  Ee,  1  Fed.  481 706 

Parsons  v.  District  of  Co- 
lumbia, 170  U.  S.  45,  18  Sup. 
Ct.   Eep.  521 620 

Parsons  v.  Trask,  7  Gray  473, 
66  Am.  Dec.  502 449 

Passenger      Cases      (Smith      v. 

Turner),  7  Howard  283 

2,  45,  66,  71,  101,  271,  486,  705 

Patapsco  Guano  Company  v. 
North  Carolina  Board  of  Ag- 
riculture, 171  U.  S.  345,  18 
Sup.   Ct.  Eep.   862 75,277 

Patterson  v.  The  Eudora,  190 
U.  S.  169 329,501 

Patterson  v.  Kentucky,  97  U. 
S.  501    135 

Patterson  v.  Wollman,  5  N.  D. 
608,  67  N.  W.  1040,  33  L.  E. 
A.  536 668 

Paul  V.  Virginia,  8  Wallace 
168 79,  342,  716 

I'awlet  V.  Clark,  9  Cranch  292.   596 

Paj'ne  v.  Gould,  74  Vt.  208,  52 
Atl.    421 518 

Pearce  v.  Eice,  142  IT.  S.  28, 
12  Sup.  Ct.  Eep.  130 200 


Pearsall  v.   Great  Northern  E. 

Co.,  161  U.  S.  646,  16  Suj).  Ct. 

Eep.   705 354,   362 

Pearson  v.  Zehr,  138  ill.  48, 

29  N.  E.  854,  32  Am.  St. 

Eep.  113  521 

Peart   v.   Meeker,  45  La.   Ann. 

421,    12   Sou.   490 409 

Pedrick  v.  Baiiey,  12  Gray  161..  163 
Peel   Splint  Coal   Co.   v.  State, 

36  W.  Va.  802 320,  735 

Peik  V.  Chicago  and  North- 
western Eailway  Co.,  94  U.  S. 

164 73,    379 

Pembina    Con.     Silver     Mining 

and  Milling  Co.  v.  Pennsyl- 
vania,  125   U.   S.   181,  8   Sup. 

Ct.  Eep.  737 716 

Pendleton  v.  State,  6  Ark.  509 

488,    691 

Pennsylvania  College  Cases,  13 

Wall.   190 597 

Pennsylvania  E.  Co.  v.  Eiblot, 

66    Pa.    St.    164,    5    Am.    Eep. 

360   629 

Pennsylvania    v.    Standard    Oil 

Co.,  101  Pa.  St.  119 717 

Penrice    v.    Wallace,    37    Miss. 

172    114 

Pensacola   Telegraph   Company 

v.    Western    Union    Telegraph 

Company,  96  U.  S.  1 79 

People  V.  Adelphi  Club,  149  N. 

Y.  5,  43  N.  E.  410,  31  L.  E.  A. 

510,  52  Am.  St.  Eep.  700 456 

People    V.    Alton,    159    111.    615, 

54   N.   E.   421 698 

People   V.   Andrews,   115   N.   Y. 

427,  22  N.  E.  128,  6  L.  E.  A. 

128    456 

People  V.  Arcnsberg,  105  N.  Y. 

123,  11  N.  E.  277,  57  Am.  Eep. 

483     49,  284 

People  V.  Armstrong,   73  ^Mich. 

288,  41  N.  W.  275,  2  L.  E.  A. 

721,  16  Am.  St.  Eep.  578.  .158,  164 
People  V.  Bellet,  99  Mich.  151, 


l^yiii  TABLE  OF  CASES  CITED. 

[references  are  to  sections.] 
22    L.    R.    A.    (596,    57    N.    W. 


1094.  41  Am.  8t.  Kep.  589 7.S.T 

Peojile  V.  Bie.seoker,    169   X.  Y. 

53,  Gl   N.  E.  990,  57  L.  R.  A. 

178,  88  Am.  St.  Rep.  534 32 

People   V.   Blooki,   203   111.    363. 

67   N.  E.  809 162,  576 

People  V.  Board  of  Assessors  of 

Brooklyn,  85  N.  Y.  610 568 

Piople    V.    Board    of    Railroad 

Commissioners,  160  N.  Y.  202, 

54   N.   E.  697 401,  659 

Peoj-le  V.  Brady,  40  Cal.  198,  6 

Am.  St.  Rop.  604 693 

People   V.    Bridges,   142   III.   30, 

31    N.    E.    IIT),    IG    L.    H.    A. 

6S4     419 

People  V,  Brown,  54  Mich.  15..  108 
People  V.  Bud<l,  153  U.  S.  391.  .  378 
People   V.   Budd,    117   N.    Y.    1, 

22  N.  E.  670,  5  L.  R.  A.  559, 

2  Am.  St.  Rep.  639 378 

People  V.  Buffalo  Fish  Co.,   164 

N.   Y.  93,  58  N.   E.   34,  52  L. 

R.    A,    803,    79    Am.    St.    Rep. 

622    420 

People  V.  Canal   Ai>i)raisers,   33 

.V.    Y.    461 408 

Po..ple  V.  Cannon.  139  N,  Y.  32, 

34  N.  E.  759,  36  Am.  St.  Rep. 

fi6S     298 

!'•    !.Ic    V.    Carpenter,    1     Mifh. 

-    ;    161 

People   V.    Chiengo   &    Alton    R. 

«'..,    ]:w    111.    175,    22    N.    !•;. 

*•':    39.') 

i.    ido   V,   Cipperly,    101    N.    Y. 

fl.TI.  4  N.  K.  107. 117 

I        do   V.   Coli-r,    106    N.    Y.    1, 

.  .•  .V.  K.  71fl.  .12  L.  R.  A.  814, 

»2  Am.  St.  Hep.  OO."! 310 

IV.., do  V,  Colliwm,  85  Mieh.  105, 

I"    N'.   W.   292 419 

I'l-.ple    V.    <''iinp:itfnie    floneralf 

Trnn<wi«lnn»i'|iie,      10"     n.     S, 


50 


4  HO,  705 


T''-..ple    V.    (riiHWr:!,    ;i    .FohnH. 


People   V.   Cummings,    88   Mich. 

249,  50  IS'.  \V.  310,  14  L.  R.  A. 

285    105 

People  V.  Dennin,  35  Hun  327..  186 
Pei    le    V.    Detroit    White   Lead 

Works,  82  .Mich.  471,  46  X.  W. 

735,  9  L.  R.  A.  722.  .  .176,  529,  531 
People   V.   Doris,   14  Appl.   Div. 

N.    Y.    117,    43    >:.    Y.    Supp. 

571    251 

People  V.  Duke,  19   Miscel.    (N. 

Y.)  292,  44  N.  Y'.  Suppl.  336.. 

346,  352 

People  V.  Ewer,  141  N.  Y.  129, 

36  N.  E.  4,  25  L.  R.  A.  794.  .  .    259 
People   V.   Fisher,    14   Wend.   9, 

28  Am.  Dec.  501 331,  356 

People   V.   Forbes,    4    Park.    Cr. 

Cas.    611 98 

People   V.   Gallagher,   93   X.   Y. 

438    698 

People  V.  Gastro,  75  Mich.  127, 

42   X.  W.  937 245 

People    V.    Gillson,    109    X.    Y. 

389,   17   X.  E.   343,  4  Am.   St. 

Rep.   465    198,  293 

People  V.  Girard,  145  X.  Y.  105, 

39  X.  E.  823,  45  Am.  St.  Rep. 

595    32 

I'eoi)le  V.  Gordon,  194  111.  560. 

62  X.  E.  858 ' 13;i 

People      V.      Harper,      91      111. 

357    278,  622 

People    V.    Il.isbrouck,    11    Utah 

291    711 

IVojiIe    V.    Havnor,    149    X.    Y. 

195,    43    i\.    E.   541,    31    L.   R. 

.\.   fi.S9    7;i") 

IV.. pie    V.    Hawker,    152    X.    Y. 

234,  46   X.    E.   607 .545 

Penplr    v.    Il:iwkiiis.    157    X.    \. 

1.  42    L.    K.   A.    I!)0 .-.() 

lVo,de  V.    Haw  ley.  3   Mich.   330.    5,^6 
People   V.    Hill,    163    111.    186,   46 

N.  E.  796   270 

People  V.  .TenkiiiH,    I    Hill,  469..      72 
Peoj)le  V.  .lenningH  (Miidi.).  94 

X.  W.  210   32,  280 


TABLE  OF  CASES  CITED, 


Lxix 


[llEFERENCES   ARE 

People  V.  King,  110  N.  Y.  418, 
18  N,  E.  245,  1  L.  R.  A.  293, 
6  Am.  St.  Rep.  389.. 389,  694,  695 

People  V.  Lake  Shore  and  Mich- 
igan Southern  R.  Co.,  52  Mich. 
277,  17  N.  W.  841.. 631 

People  V.  Lewis,  86  Mich.  273, 
49  N.  W.   140 177 

People  V.  Lochner,  76  N.  Y. 
Suppl.  396,  73  App.  Div. 
120,  affd.  69  N.  E.  373 317,  735 

People  V.  Lowndes,  130  N.  Y. 
455,  29  N.  E.  751 712 

People  V.  McCoy,   125  111.   289, 

17  N.  E.  786 546 

People  V.  Marx,  99  N.  Y.   377, 

2    N.     E.     29,     52    Am.     Rep. 

34   62,  147,  283 

People  V.  Melvin,  2  "Wheeler  Cr. 

C.  262    331 

People    V.    Milk    Exchange,    145 

N.  Y.  267,  39  N.  E.  1062,   27 

L.  R.  A.  437,  45  Am.  St.  Rep. 

609    347,  355 

People  V.  Miller,  38  Hun  82..  157 
People  V.   Moses,   65  Hun   161, 

20  N.  Y.  Supp.  9 186 

People  V.  Most,  128  N.  Y.  108, 

27  N.  E.  970,  26  Am.  St.  Rep. 

458     477,  480 

People  V.  Most,  171  N.  Y,  423, 

64   N.   E.    175 477 

People  V.  Muller,  96  N.  Y.  408, 

48  Am.  Rep.  635 237 

People    V.    Naglee,    1    Cal.    232, 

52  Am.  Dec.  312 706 

People    V.    New    York    Central 

and     Hudson     River     Railroad 

Company,  28  Hun  543 63,  452 

I'eople  V.  New  York,  Lake  Erie 

&  Western  R.   R.   Co.,   104   N. 

Y.   58,   9   N.    E.    856,   58   Am. 

Rep.  484    387,  395 

People    V.    North    River    Sugar 

Refining   Co.,    121    N.    Y.    582, 

24  N.  E.  384,  9  L.  R.  A.  386, 

18  Am.  St.  Rep.  843 350 

People    V.    O'Brien,    111    N.    Y. 


:  TO   SECTIONS.] 

1,    18   N.    E.   692,   2   L.   R.   A. 

255,  7  Am.  St.  Rep.  684 362 

People  V.  Phippin,  70  Mich.  6, 

37  N.  W.  888 543,  711 

People  V.  Phyfe,  136  N.  Y.  554, 

32  N.  E.  978,  19  L.  R,  A.  141.  316 
People  V.  Pierson   (N.   Y.),   68 

N.  E.  243    260,  468 

People    V.    Potter,    1    Park    Cr. 

R.  47   104 

People  V.  Pratt,  129  N.  Y.  68, 

29  N.  E.  7   141 

People  V.  Reetz,   127   Mich.   87, 

86  N.  W.  396 543 

People    V.    Rochester,    45    Hun. 

(N.   Y.)    102    274 

People  V.  Roper,  35  N.  Y.  629..  568 
People  V.  Rosenberg,  138  N.  Y. 

410,  34  N.  E.  285 158 

People  V.  Ruggles,  8  Johns.  290, 

5  Am.  Dec.  335   465 

People  V.  Russell,  49  Mich.  617, 

14    N.    W.    568,    43   Am.    Rep. 

478    288 

People    V.    Sheldon,    139    N.    Y, 

251,   34   N.   E.   785,    23   L.   E. 

A.  221,  36  Am.  St.  Rep.  690.  . .  347 
People    V.    Shurly     (Mich.),    91 

N.  W.   139    52 

People  V.  Smith,  108  Mich.  527, 

32  L.  R.  A.  853 144 

People   V.   Soule,   74   Mich.   250, 

4  N.  W.  908,  2  L.  R.  A.  494 .  .  456 
People  V.  Taylor,  96  j\Iich.  576, 

56  N.  W.  27,  21  L.  R.  A.  287.  248 
People  V.  Thurber,  13  111.  554.  .  38 
People  V.  Todd,  51  Hun.  466,  4 

N.   Y.   Supp.   25 202 

People   V.   Trequier,   1   Wh.    Cr. 

C.  142   331 

People  V.  Turner,  55  HI.  280,  8 

Am.  Rep.  645  260 

People    V.    Vandecarr,     175    N. 

Y.  440,  67  N.  E.   913 652 

People  V.   Vanderbilt,   38  Barb. 

282    163 

People  V.  Van  Pelt,   90  N.  W. 

424    419 


Ixx 


TABLE  OF  CASES  CITED. 


[refekences  ake  to  sections.] 


People  V.  Wagener,  S6  Mich. 
594,  49  N.  W.  609,  13  L.  E.  A. 
286,  24  Am.  St.  Rep.  141 275 

People  V.  Walbritlge,  6  Cow.  512  725 

People  V.  Weissenbach,  60  N.  Y. 
385    -63 

People  V.  West,  106  X.  Y.  293, 
12  N.  E.  610,  60  Am.  Eep. 
45'_2    635 

People  ex  rel.  Smith  v.  Allen, 
155  111.  61.  39  N.  E.  568,  41 
L.   R.   A  473 108 

People  ex  rel.  Boenert  v.  Bar- 
rett  (111.),  67  N.  E.  23 108 

People  ex  rel.  Linton  v.  Brook- 
lyn Heights  R.  Co.,  172  N.  Y. 
90,  64   N.   E.   788 395 

People  ex  rel.  Akin  v.  Butler 
Street  Foundry  and  Iron  Com- 
pany, 201  111.  236,  66  N.  E. 
349" 55,  356 

People  ex  rel.  Fleischman  v. 
CaMwell,  64  App.  Div.  46,  71 
N.  Y.  Suppl.  654,  affirmed  61 
N.  E.  1132,  16S  N.  Y.  671.. 61,  291 

People  ex  rel.  Peabody  v.  Chi- 
cago Gas  Trust  Co.,  130  Til. 
20s,  22  N.  E.  798,  8  L.  R.  A. 
497,  17  Am.  St.  Hep.  319.  .349,  360 

People  ex  rel.  Valentine  v.  Cool- 
i«lgp,  Harien  Circuit  .Tiidgc, 
124  Mich.  664,  50  L.  R.  A.  493, 
83  N.  W.  594,  S3  Am.^t.  Rep. 
352    297 

PfMipIo  OX  rel.  ForHyth  v.  Cnurt 
of  HiwxionH  of  .Monroe  County, 
141  N.  Y.  28S,  30  N.  E.  3S6, 
23  L.  R.  A.  H56.  .  108 

I'.  i.I«<  ex  rel.  CofTcy  V.  licilio- 
'  ralic  (ienerai  Committee,  KM 
N.  V.  335,  M  N.  K.  124,  51 
\j.  R.  A.  674 483 

People  ex  rel.  Madden  v.  Dyck- 
rr,  72  Apj..  01  v.  CN.  \.)  30S. 
76  N.  Y.  Huppl.  Ill  .60,  293 

lo  ex  rel.  RickH  V.  Kik 
...v.r  Co.,  107  Cn].  214,  40 
Pnr.  SSI    418,  419 


133 


54 


10 


People  ex  rel  Lawrence  v.  Fal- 
lon, 152  N.  Y.  12,  46  N.  E. 
296,  37  L.  R.  A.  227,  57  Am. 
St.  Rep.  492 194,  195 

People  ex  rel.  Healey  v.  Forbes, 
52  Hun.  30,  4  N.  Y.  Supp. 
757    192,  193 

People  ex  rel.  St.  Board  of 
Health  V.  Gorden,  194  HI. 
5G0,  62  N.  E.  858 151 

People  ex  rel.  Schwab  v.  Grant, 
126  N.  Y.  473,  27  N.  E.  964.  .   652 

People  ex  rel.  Postal  Tel  Co.  v. 
Hudson  River  Telephone  Co., 
19  Abb.  N.  C.  466 389,  395 

Peojde  ex  rel.  State  Board  of 
Health  v.  Lehr,  196  111.  361, 
63  N.  E.  725   

People  ex  rel.  Haekley  v.  Kelly, 
24   N.   Y.   74 

I'cople  ex  rel.  John  Hoy  v. 
Mills,  91  Hun  144,  36  N.  Y. 
Supp.   371 

People  ex  rel.  Einsfeld  v.  Mur- 
ray, 149  N.  Y.  367,  44  N.  E. 
146,  32  L.  R.  A.  344   37,    39 

People  ex  rel  Lewinsohn  v. 
O'Brien,  176  N.  Y.  — ,  68 
N.  E.  353 

People  ex  rel.  Cartwell  v.  Ro- 
chester, 44  Hun.   166    

People  ex  rel.  Cantrell  v.  St. 
Louis,  A.  &  T.  H.  R.  Co.,  176 
111.  512,  52  N.  E.  292,  35  L.  R. 
A.    656     

People  ex  rel.  Cisco  v.  School 
Hoard,  161  N.  Y.  598,  .56  N.  E. 
81     

Pno|>le   ex   rel.    New    York,    etc., 

Co.  V.  Squire,  107  N.  Y.  593,  14 
N.  E.  820,  1  .\iii.  St.  Uep.  893, 
8.  C.  145  U.  S.   175 575,  622 

T'eople  ex  rel,  Br;idley  v.  Super- 
intendent Illinois  Stat(!  Re- 
f.irmatory,  148  III.  413,  36  N. 
E.  76   105 

People  ex  rel.  Nechnnicus  v.  War- 
den of- City  Prison,   144   N.  Y. 


54 


468 


395 


698 


TABLE  OF  CASES  CITED. 


Ixxi 


[references  are  to  sections.] 


529,  39  N.  E.  686,  27  L.  E.  A. 

718     646 

People  of  State  of  New  York 
ex  rel.  Tyroler  v.  Warden  of 
the  City  Prison  of  City  of  New 
York,  157  N.  Y.  116,  51  N.  E. 
1006,  43  L.  E.  A.  264,  68  Am. 

St.  Eep.  763 61,  291,  673 

I'eople  ex  rel.  Sullivan  v.  Wen- 
del,  33  Miscel.  (N.  Y.)  496, 
68    N.    Y.   Suppl.    948 253 

People  ex  rel.  City  of  Chicago  v. 
West  Chicago  Street  E.  Co., 
203  111.  551,  68  N.  E.  78.  .  .406,  576 

People  ex  rel.  Cairo  Telegraph 
Co.  V.  Western  Union  Tele- 
graph Co.,  166  111.  15,  46  N. 
E.  731,  36  L.  E.  A.  637 395 

People  ex  rel.  Copeutt  v.  Yonk- 
ers  Board  of  Health,  140  N. 
Y.  1,  35  N.  E.  320,  23  L.  R. 
A.  481,  37  Am.  St.  Eep.  522.  .   521 

People 's  Building  Loan  Associ- 
ation of  Saginaw  Co.  v.  Billing, 
104  Mich.  186,  62  N.  W.  373.  .   304 

Peoria,  etc.,  E.  E.  Co.  v.  Dug- 
gan,  109  111.  537,  50  Am.  Eep. 
619     727 

Perkins  v.  St.*  Louis  and  Iron 
Mountain  E.  Co.,  103  Mo.  52, 
15  S.  W.  320,  11  L.  E.  A.  426.   727 

Perrine  v.  Chesapeake  &  Dela- 
ware Canal  Co.,  9  How.  172.  .  .   375 

Pervear  v.  Commonwealth  of 
Massachusetts,  5  Wall.  475...      81 

Petit  V.  Minnesota,  177  U.  S. 
164     735 

Pettis  V.  Johnson,  56  Ind.  139. 
162,  163 

Phalen  v.  Virginia,  8  How.  163 
563,  579 

Phelps  V.  Eacey,  60  N.  Y.  10, 
19  Am.  Eep.  140 419,  516 

Philadelphia  v.  Brabender,  201 
Pa.  574,  51  Atl.  374,  58  L. 
E.    A.    220 164 

Philadelphia  and  Southern  Mail 


S.  S.  Co.  V.  Pennsylvania,  122 

U.  S.  326   717 

Philadelphia  Fire  Association  v. 

New  York,  119  U.  S.  110 716 

Philadelphia,  W.  &  B.  E.  Co.  v. 

Bowers,  4   Houst.  506 571,572 

Phoenix  Insurance  Co.  v.  Levy, 

12  Tex.  Civ.  App.  45,  33  S.  W.' 


992 


501 


568 
200 

395 


456 


323 


99 


363 


Phoenix  Insurance  Co.  v.  Ten- 
nessee,  161  U.   S.   174 

Pickering  v.  Cease,  79  111.  328.  . 

Pickford  v.  Grand  Junction  R. 
Co.,  10  M.  &  W.  399 

Piedmont  Club  v.  Common- 
wealth, 87  Va.  540,  12  S.  E. 
963     

Pierce  v.  Whittlesey,  58  Conn 
104 

Pinkerton  v.  Verberg,  78  Mich 
573,  44  N.  W.  579,  7  L.  E.  A 
507,  18  Am.  St.  Eep.  473 

Fiqua  Branch  of  State  Bank  v. 
Knoop,  16  How.  369 

Pitts  V.  Lancaster  Mills,  13 
Mete.  156   425 

Pittsburg  and  Southern  Coal 
Company  v.  Louisiana,  156  U. 
S.  590    75,  274 

Pittsburg,  C.  C.  &  St.  L.  R. 
Co.  V.  Montgomery,  152  Ind.  1, 
49  N.  E.  582,  71  Am.  St.  Eep. 
300 715 

Plant  V.  Woods,  176  I\Iass.  492, 
57  N.  E.  1011,  51  L.  R.  A.  339, 
79  Am.  St.  Rep.  330 333,  336 

Platte  and  D.  Canal  &  Milling 
Co.  V.  Dowell,  17  Col.  376,  30 
Pac.    68    362 

Plessy  V.  Ferguson,  163  U.  S. 
537 63,  p.  59,  610,  697,  699 

Pleuler  v.  State,  11  Neb.  547,  10 
N.  W.  481    564 

Plumb  V.  Christie,  103  Ga.  6S6, 
30  S.  E.  759,  42  L.  R.  A.  181.. 
218.667 

Plumley,  Re,  156  Mass.  236,  30 
N.  E.  1127,  15  L.  R.  A.  839.  .   284 


Ixxii 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


209 
700 

88 


Plumley    v.    Massachusetts,    155 

U.  S.  461    

49,  62,  77,  84,  271,  284,  295 

Pocopson  Road,  16  Pa.  St.  15.  .   427 
Polak  V.  San  Francisco  Orphan 

Asylum,  48  Cal.  490 166 

Pollar.rs    Appeal,    127    Pa.    St. 

507,  17  Atl.  1087 

Polly  Gray  v.  State,  4  Oh.  353.  . 
Pond    V.    The    People,    8    Mich. 

150   

Pooling    Freights,    In    Ke,    115 

Fed.   5S8    55 

Porter  v.   Ritch,   70   Conn.   235, 

39  Atl.  169,  39  L.  R.  A.  353.  .   252 
Portland  v.  Bangor,  65  Me.  120, 

20  Am.  Rep.  681   98,  244 

Portland   &   R.   R.   Co.   v.    Decr- 

ing,  78  Me.  61,  2   .Atl.  670,  7^7 

Am.  Rep.  784  631 

Port    Royal    Mining   Co.    v.    Ha- 

good,  30  S.  C.  519,  9  S.  E.  686, 

3  L.  R.  A.  841    644 

Post  V.  W.il,  11.'-.  X.  Y.  361,  22 

N.   E.    14.'-),  5   1..   U.  A.  422,   12 

Am.  St.  Rep.  809   590 

Potter  V.  Collins,  156  N.  V.   Hi, 

60  N.  E.  413   576 

Pottfl  V.   Broon,    167    111.   67,   47 

\.  K.  81.  r.'.t   Am.  St.   IJrp.  262. 

111,117 

Pound  V.  Tnrrk,  95  U.  S.  459.  . .      72 
Powell     V.    Comnuinwfultli,     114 

Pa.  Ht.  28.';.  7  .\fl.  913,  60  Am. 

R4«p.  .150  r,:,   I  17,  283,541 

Powell   V,    PfiirixylvHiiiii,    127   U. 

H.  678..0'J.  69,  H4.  134.  137,  28.3,  541 


PowHI  V,  State.  69  Ala,   10. 


)rt4 


Powem  V.  Commonwealth,  90 
Ky.  167,  13  a  W,  4.'50 454 

Prntt  V.  HutrhinNon,  15  East 
511    481 

Prntt  »,  Tcfft,  14  Mich,  191 709 

Prorngntlvp,    Cnmp    of    the,    12 

B^T-  1  ■  .  r,:\{ 

Prc^iby  V.  Klirkitiit  ("o,.  5  Wanh. 
3:J>,  31  '•       -zr,  r.i.i 


214 


36i 


Prescott  V.  State,  19  Ohio  St, 
184,  2  Am.  Rep.  388   261 

Presser  v.  Illinois,  116  U.  S. 
252   91 

Preston,  Re,  63  Oh.  St.  428,  59 
N.  E.  101,  52  L.  R.  A,  588.378,  394 

Preston  v.  Drew,  33  Me.  558, 
54  Am.  Dec.  639 539 

Price  V.  People,  193  111.  114,  61 
N.  E.  844,  55  L,  R.  A.  588,  86 
Am.  St.  Rep.  306   287,  328 

Priewe  v.  Wisconsin  State  Laud 
&  Inipl.  Co.,  93  Wis.  534,  67  N. 
W.  918,  33  L.  R.  A.  645 408 

Prohibitory  Amendment-  Cases, 
24  Kan.  700   

Proprietors  of  Bridges  v.  Hobo- 
ken  Land  &  Improvement  Co., 
1   Wall.   116   

Proprietors  of  Mills  v.  Brain- 
tree  Water  Supply  Co.,  149 
Mass.  478,  21  N.  E.  761,  4  L. 
R.  A.  272   425 

Proprietors  of  Mount  Hope 
Cenu'tory  v.  Boston,  158  Mass. 
509,  33  N.  E.  695,  35  Am.  St. 
Rep.  515   512 

Prosser  v.  Wapello  Co.,  18  la. 
327     • 668 

Provident  Saving  Life  Aasoci- 
.-ition  Society  v.  Cutting,  181 
Mass.  261,  63  N.  E.  433 716 

Pryor,  Re.  55  Kan.  724,  41  Pac. 
958.  29  L.  R.  A.  398,  49  Am. 
St.    Hrp.   280    374 

Pnitt  V.  County  Commissioners, 
94   N.  C,  709.  55  Am.  Rep,  638  698 

I'lilltnjiii  I'.'il.Mce  Car  Co,  v,  Mis- 
Houri  Pa.ifii-  R,  Co.,  115  U,  S. 
587     395 

Punly  V,  Erie  R.  Co,,  162  N.  Y. 
42.  56  N.  E.  508,  48  L,  R.  A, 
669    393 

I'limpclly  V.  CrfMii  Bay,  etc., 
Co.,  13  Wall.   166 409,  410,  508 

Pye  V.  Poterson,    11   Tex,  312,,,   141 

QiinckenhuHli  v,  Wisconsin,  etc, 
R.  Co.,  62  Wis.  411.  22  N.  W. 


TAULK  OF  CASES  CITED. 


Ixxiii 


[references  ark  to  SKCTIONS.J 


519;    same  case,  71   Wis.  472, 

37  N.  W.  384 629 

Quartimas  v.  State,  48  Ala.  269.    240 
Queen    Insurance    Co.    v.    State, 

86  Tex.  250,  24  S.  W.  397,  22 

L.    K.    A.    483 340 

Quincy  v.  Bull,  106  III.  337 576 

Quincy   v.    Kennard,    151    Mass. 

563,  24  N.  E.  860 644 

Quinn   v.    Leathern,   L.   K.    1901 

A.  C.  495   334 

Quintini    v.    Bay   St.    Louis,    64 

Miss.  483,  1  So.  625 178 

Eabe  v.  State,  39  Ark.  204 221 

Eagan  &  Buffet  v.  Aiken,  9  Lea 

(Tenn.)  609,  42  Am.  Rep.  684.    392 
Eahrer,  Petitioner,  In  re,  140  U. 

S.  545    76 

Railroad  Commission  Cases,  116 

U.  S.  307   63,  p.  60,  363,  380 

Railroad  Commissioners  v.  Port- 
land, 63  Me.  269,  18  Am.  Rep. 

208   363,  395 

Eailroad  Co.  v.  Iowa,  94  U.  S. 

155     362 

Railway  Co.  v.   Sharpe,  38  Oh. 

St.   150    629 

Ramsdale  v.  Foote,  55  Wis.  557, 

13  N.  W.  557 413 

Ramsey  v.  People,  142  111.  380, 

32  N.  E.  364,  17  L.  R.  A.  853.    394 
Randolph      v.      Builder's,      etc., 
Supply   Co.,    106   Ala.    501,    17 

Sou.    731     727 

Rapier,  In  re,  143  U.  S.  110 198 

Raritan,  etc.,  R.  Co.  v.  Dela- 
ware, etc.,  Canal  Co.,  18  N.  J. 
Eq.    546    660 

Rasmussen  v.  Idaho,  181  U.  S. 

198    77,   136,  138 

Raudenbusch,   Re.,    120   Pa.   St. 

328,  14  Atl.  148 210,  651 

Reade  v.  Conquest,  9  C.  B.  (N. 
S.)    755    663 

Reagan  v.  Farmers'  Loan  and 
Trust  Company,  154  U.  S.  362. 
63,  p.  60,  383,  384,  611,  612 


Kcod  's  Appeal,  114  Pa.  St.  452, 

6   Atl.   910    (,-y] 

Reetz  V.  Michigan,  188  U.  S.  505 

543,  647 

Reg.  V.  Ashton,  1  E.  &  B.  286.  .    IK'.) 
Reg.  V.   Downes,   13   Cox  C.   ('. 

Ill    4C„ 

Reg.   V.    Hieklin,    11    Cox   Crim. 

Cases,  19 237 

Reg.   V.   Most,   L.   R,    7    Q.    B. 

D.  244   477 

Reg.  V.  Tolson,  L.  R.  23  Q.  B. 

Div.   168    635 

Reg.  V.  Tuchin,  Holt,  424 475 

Reg.  V.  Walsall  Justices,  3  C.  L. 

R.  100,  3  Wkly.  Rep.  69 

208,  210,  672 

Regents,  etc.,  v.  Williams,  9  G. 

&  J.  (Md.)  365,  31  Am.  Dec.  72  361 
Reid  V.  Colorado,  187  U.  S.  137 

77,   136,  13S 

Reining  v.  New  York,  Lake 
Erie  &  Western  R.  Co.,  128  N. 
Y.  157,  28  N.  E.  640,  14  L.  R. 

A.  133   510 

Reinken  v.  Fuehring,  130  Ind. 
382,  30  N.  E.  414,  15  L.  R.  A. 

624,  30  Am.  St.  Rep.  247 620 

Republic    Iron    &    Steel    Co.    v. 

State  (Ind.),  66  N.  E.  1005...  320 
Respublica  v.  Dennie,  4  Yeates 

267,  2  Am.  Dec.  402 471,  474 

Respublica  v.  Duquet,  2  Yeates 

(Pa.)    483    141 

Respublica  v.  Sparhawk,  1  Dall. 

357    518,   534, 536 

Revell  V  People,  177  111.  468,  52 
N.  E.  1052,  43  L.  R.  A.  790,  69 

Am.  St.  Rep.  257 408 

Rex  V.  Carlile,  6  C.  &  P.  636.  .  .  .    168 
Rex    V.    Dean    of    Asaph,    3    T. 

R.   428    471 

Rex  V.  Pasmore,  3  T.  R.  199..   361 

Rex  V.  Webb,  14  East.  406 481 

Rex  V.  Young  and  Pitts,  1  Burr. 

556     654 

Reynolds  v.  Plumbers*  Mate- 
rial Protective  Association,  30 


Lxxiv 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Miscel.  (X.  Y.)   709,  63  X.  Y. 
Suppl.  303    301 

Reynolds  v.  State,  73  Ala.  3 454 

Fcvnolds  V.  United  States.  98  U. 
S.'  145  460,  467,468 

Rhodes  v.  Iowa,  170  U.  S.  412. 
76,   81,  232 

Rice  y.  Foster,  4  Harrington 
(Del.)   479    217 

Rice  V.  Winslow,  180  Mass.  500, 
62  N.  E.  1057 201 

Riihardson  v.  Buhl,  77  Mich. 
632,  43  X.  W.  1102,  6  L.  R.  A. 
457   353 

Richmond,  City  of,  v.  Dudley, 
129  Ind.  112,  28  N.  E.  312,  13 
L.  R.  A.  5,S7,  28  Am.  St.  Rep. 
180  643 

Richmond  v.  Foss,  77  Me.  590, 
1  Atl.  830 274 

Richmond  and  Alleghany  Rail- 
road Company  v.  Patterson  To- 
bacco Co.,   169   U.   S.   311 

73,  p.  69.  73.  p.    70 

Rickart  v.  People,  79  III.  85 456 

Rideout  V.  Kimx  et  al.,  148 
MasH.  .30S,  19  X.  E.  390,  2 
I..  R.  A.  81,  12  Am.  St.  Rep. 
500 63,  p.  59,  182,426 

Bider  v.  United  States,  178  U. 
S.  251    407,519 

Rinney  v.  Chicago,  102  III.  64.   508 

Rippe  V.  Becker,  56  Minn.  100, 
57  N.  W.  331,  22  L.  R.  A.  857.   060 

Ritchin  V.  The  People.  155  111. 
98,  40  N.  E.  454,  29  L.   R.  A. 

79.  46  Am.  8t,   Rep.  315 

30.   313.  735 

liiMT  Renderlnjf  Co.  v.  Behr,  77 
Mo.  91,  46  Am.  Rep.  0 522 

Rohliinii  V.  Shelby  Cfninly  Tax- 
Oi^lrlet,  120  V.  S.  4«9.  . 
74.  79,  294, '295,  718 

pr.Scr«nn  V.  Wtnfe.  42  Fin.  233. 

\..  R.  A.  751..     90 

Itul^rl  V.  P.. will.  lOH  N.  Y.  411, 
01  N.  E.  099,  55  T,.  t?  a  775, 
85  Am.  St.  Rop.  07:!  .  .    102 


Roberts  v.  Boston,  5  Cush.  198. 

Robertson  v.  Baldwin,  165  U.  S. 
275   329, 

Robertson  v.  Commonwealth,  101 
Ky.  285,  40  S.  W.  920 

Robinson's  Case,  131  Mass.  376, 
41  Am.  Rep.  239 

Robinson,  Clerk,  v.  Hamilton, 
60  la.  134,  46  Am.  Rep.  63.  .44, 

Robinson  v.  Mayor  and  Alder- 
men of  Franklin,  1  Humph. 
(Tenn.)  156,  34  Am.  Dec.  625. 

Robison  v.  Miner,  68  Mich. 
549   210, 

Roby  V.  Smith,  131  Ind.  342,  30 
X.  E.  1003,  15  L.  R.  A.  792, 
31  Am.  St.  Rep.  439   706, 

Rochester  v.  West,  164  N.  Y. 
510,  58  N.  E.  673,  53  L.  R.  A. 
518,  79  Am.  St.  Rep.  659... 
118,    147, 

Rockwell  V.  Nearing,  35  X^.  Y. 
302   

Rogers  v.  .Tones,  1  Wend.  237, 
19  Am.  Dec.  493    

Rogers  Park  Water  Co.  v.  Fer- 
gus, 178  111.  571,  53  X.  E.  363. 

Rogers  Park  Water  Co.  v.  Fer- 
gus, 180  U.  S.  624  

Rohan  v.  Sawin,  5  Cush.  281 .. . 

Rosedalo,  Town  of  v.  TT.iiiiier, 
157   Ind.   .390,   61    X.    H.    7!t2.  . 

Roseiiliiunii  v.  Xewbeni,  lis  X'^. 
C.  83,  32  L.  R.  A.  123 

Rosenbloom  v.  State  of  X'^e- 
Ijra.-^ka,  57  L.  R.  A.  922.  89 
X.  W.   1053    37.   2S9. 

Rossmiller  v.  Slate,  1 1  1  \\'is. 
169,  S9  X.  W.  s;{!»,  r.S  L.  H. 
A.    93    

Rowe  V.   Yuba   Co.,    17   Cil.   (il  . 

Rowj.'ind  V.  Cily  of  fireenciHtle, 
157  Ind.  707,  62  X.  E.  )7t, 
58   N.    !•;.    Ki:?! 

Roxbury  v.  Boston  &  M;iitn'  R. 
Co..  0  CuHh.  424    

Ruch  V.  Xew  Orleann,  43  La. 
Ann.  275,  9  So.  473 


610 
451 
170 
702 
613 

37 
651 

709 

182 

168 

712 

571 

571 
87 

108 

i:?o 


417 
613 


33 
363 
409 


TABLE  OF  CASES  CITED, 


Ixxv 


[references  are  to  sections.] 


Rucker  v.  State,  67  Miss.  328,  7 

So.  223    186 

Ruggles    V.    Illinois,    108    U.    S. 

526 362,  363,  379,  570 

Ruggles  V.  Nantucket,  11  Cush. 

433   534 

Ruhstrat  v.  People  of  State  of 

Illinois,  185  111.  133,  57  N.  E. 

41,   49  L.   R.   A.   181,   76  Am. 

St.  Rep.   30 63,  p.  59,  183,  729 

Rumsey  v.   New  York  &   N.   E. 

R,  Co.,  133  N.  Y.  79,  30  N.  E. 

654,  15  L.  R.  A.  618,  28  Am. 

St.  Rep.  600    408 

Rundle  v.   Delaware   &  Raritan 

Canal  Co.,  14  How.  80   576 

Rushville    v.    Rushville    Natural 

Gas  Co.,  132  Ind.  575,  28  N.  E. 

853,  15  L.  E.  A.  321 372 

Russell  V.  New  York,  2  Den.  461  534 

Rust  V.  Low,  6  Mass.  90 444 

Ruth,  Re,  32  Iowa  250 651 

Ryall  V.  State,  78  Ala.  410 221 

Ryers,  Re,  72  N.  Y.  1,  28  Am. 

Rep.  88   442 

Ryerson    v.    Brown,    35    Mich. 

333,  24  Am.  Rep.  564  412 

Sacramento,  City  and  County,  v. 

Crocker,  16  Cal.  119 38 

Sadler  v.  Langham,  34  Ala.  311  427 
Sage  V.  Mayor  of  New  York,  154 

N.  Y.  61,  47  N.  E.  1096,  38  L. 

R.    A.    606,    61    Am.    St.    Rep. 

592     408 

Salem    v.    Eastern    R.    Co.,    98 

Mass.  431,  96  Am.  Dec.  650..   521 

St.  Anna 's  Asylum  v.  New  Or- 
leans, 105  U.  S.  362 

St.  Joseph  V.  Harris,  59  Mo 
App.    122    

St.  Joseph,  City  of,  v.  Levin, 
128  Mo.  588,  31  S.  W.  101,  49 
Am.  St.  Eep.  577   43,  53 

St.  Louis  V.  Bell  Telephone  Co., 
96  Mo.  623,  10  S.  W.  197,  2 
L.  R.  A.  278,  9  Am.  St.  Eep. 
370   374 

St.  Louis  V.  Dorr  et  al.,  145  Mo. 


568 


225 


466,   41  S.   W.   1094,  42  L.  R. 

A.  686,  68  Am.  St.  Rep.  575.23,  181 
St.    Louis    V.    Fischer,    167    Mo. 

654,  67  S.  W.  872  644 

St.  Louis  V.  Heitzeberg  Packing 

&  Provision  Co.,   141  Mo.  375, 

42  S.  W.  954,  39  L.  R.  A.  551, 

64  Am.  St.  Rep.  516  177 

St.  Louis,  City  of,  v.  Hill,  116 

Mo.  527,  22  S.  W.  861,  21  L. 

R.  A.  226 23,  34,  181,  514,  613 

St.     Louis     V.     Meyrose     Lamp 

Mfg.  Co.,  139  Mo.  560 654 

St.    Louis   V.    Russell,    116    Mo. 

248,  22  S.  W.  470,  20  L.  E.  A. 


721 


645 


St.  Louis  V.  Webber,  44  Mo.  547  641 

St.  Louis  V.  Western  Union 
Tel.  Co.,  148  U.  S.  92 165 

St.  Louis  &  San  Francisco  R. 
Co.  V.  Gill,  54  Ark.  101,  15 
S.  W.  18,  11  L.  R.  A.  452.  . .  .   384 

St.  Louis  and  S.  F.  E.  v.  Gill, 
156  U.  S.  649 551 

St.  Louis  and  San  Francisco  E. 
Co.  V.  James,  161  U.  S.  545..   718 

St.  Louis  and  San  Francisco  E. 
Co.  V.  Mathews,  165  U.  S.  1 .  . . 
630, 727 

St.  Paul  V.  Gilfillan,  36  Minn. 
298,  31  N.  W.  49 177 

St.  Tammany  Water  Works  Co. 
V.  New  Orleans  Water  Works 
Co.,  120  U.  S.  64 679 

Salem  v.  Manyes,  123  Mass.  372  556 

Salt  Co.  V.  East  Saginaw,  13 
Wall.    373    568 

Samuels  v.  County  of  Dubuque, 
13  Iowa  536 613 

Sanborn  v.  Benedict,  78  111.  309  199 

San  Diego  Land  &c.  Co.  v.  Na- 
tional City,  174  U.  S.  739 552 

San  Diego  Water  Co.  v.  San 
Diego,  118  Cal.  556,  50  Pac. 
633,  38  L.  E.  A.  460,  62  Am. 
St.  Eep.  261   382, 553 

Sands  v.  Manistee  Eiver  Im- 
provement Co.,  123  U.  S.  288..  661 


Ixxvi 


TABLE  OF  CASES  CITED. 


Sanford    v. 
St.   -'78    . 


[references  are  to  sections.] 
Catawassa,    24    Pa. 


395 


Santo  V.  State,  2  Iowa  165,  63 

Am.  Dec.  487  -'U 

Sarrls  v.  Commonwealth,  83  Ky. 

327 59,  222,  223 

Savannah    v.    Mulligan,    95    Ga. 
323,   22   S.    E.   621,   29   L.   R. 

A.  303,  51  Am.  St.  Rep.  86 521 

Savannah    and    Ogeechee    Canal 

Co.  V.  Shuman,  91  Ga.  400,  17 

S.  E.  937.  44  Am.  St.  Rep.  43. 

63,    p.    61 

Sthaezliu    et     al.     v.    Cabaniss, 

Jii.lge,    135   Cal.   466,   67   Pac. 

755.  N7  Am.  St.  Rep.  122 34 

Sthehr  v.  Detroit,  45  Mich.  626, 

7   N.  W.  799    427 

Srhenck  v.  Union  Pacific  Co.,  5 

Wyu.  43(1,  4(t  Pac.  840 629 

Schlaudecker  v.  Marshall,  72  Pa, 

St.   20U    209 

Sohoen  Hrothers  v.  City  of  At- 
lanta, 97  C.a.  697.  25  S.  E.  380, 

33  L.  H.  .\.  Mil   34,522 

S<-holle  v.  State,  90  M.l.  729,  50 

L.  K.  A.  411,  46  Atl.  326 673 

B<-hollcnl»erger   v.   Pennsylvania, 

171   U.  8.   1 

.  .  .62,  69.  77,  84,  137,  145,  147,  283 
Bchool   TruHtees   v.   Tatnian,    13 

111.   27    668 

8<-hultr.  v,  HyorH,  53  N.  .1.  Law 

IIJ.   22   All.   514.    13   L.    R.  A. 

"<•.•,  26  Am.  St.  Kep.  435 424 

iiachiT  ft  ul.  V.  The  City  of 

N.»w  Yi.rk.   lOfi   .\.   Y.   103.  59 

'      K.  773   47 

I'l.r.w    V.   Chicago,   68    111. 

•HI  58:' 

8rotl  V.  DonnM.  165  U.  8.  58. .  . 

76,   82,  233 

•       t.  7  iVt.  590 ri70 

;<,  39  (}a.  321 697 

f'.n.  Re.  fi  III.  161    r.iW 

Whoolrr,   179  U.  8. 
141  .  ,404,  40H,  509 


320 

20 


Scrip  Bill,  Re,  23  Colo.  504,  48 

Pac.  512 

Sears  v.  Cottrell,  5  Mich.  251.. 
Sears    v.    Gallatin    County,     20 

Mont.    462,    52    Pac.    204,    40 

L.  R.  405   614 

Seidenbender  v.  Charles,  4  S.  & 

R.  151,  8  Am.  Dec.  682 197 

Selden   v.    Overseers,    11   Leigh. 

132    , 594 

Selectmen  v.  Murray,  16  Pick. 

121    141 

Senate  of  Happy  Home  Club  v. 

Alpena   Co.,   99   Mich.   117,   57 

N.  W.  1101,  32  L.  R.  A.  144.  .   227 
Sentell  v.  New  Orleans  &  C.  R. 

Co.,  166  U.  S.  698 421,  526 

Sessions   v.   Crunkleton,    20    Oh. 

St.   349 442 

Shaffer  v.  Union  Mining  Co.,  55 

Md.   74    320 

Shanley  v.  Wells,  71  111.  78 99 

Shejtpprd     v.     Sumpter    County 

Commissioners,  59  Ga.  535,  27 

Am.  Rep.  394 328 

Sherlock  v.  Stuart,  96  Mich.  193, 

55  X.  W.  845,  21  L.  R.  A.  580. 

210,  651 

Sherman  v.  Baker,  20  R.  I.  446, 

40  Atl.  11,  40  L.  R.  A.  717  ...    369 
Sherman  v.  Buick,  32  Cal.   241, 

91  Am.  Dec.  577 427 

Sherman    v.   Sherman,    18   R.   I. 

504.  30  Atl.  459 576 

Slii'rman  v.  Sinitli,  1  Black,  587.  567 
Shields  v.  Ohio,  95  U.  S.  319.  . 

362,  363 

Shiiili-y  v.   I-'ifty  Associates,  lOfi 

Mass.  194,  8  Am.  Rep.  318   .  .  .    616 

Shi])nian    v.   State    Live    Stock 
(!omml8HionorH,  115  Mich.  488, 

73   N.   W.   817 521 

Shirk  v.  La  Fayette,  52  Fed.  857  706 
Shively  V.  Bowlby,  L52  U.  S.  1.  403 
Sliohcrt,   e.\   parte,   70   Cal.   632, 

I  1   Pac.  786,  59  Am.  W.  p.  132.  .    198 
Short    V.    Mnllion,    etc.,    Co.,    20 


TABLE  OF  CASES  CITED. 


Ixxvii 


[references  are  to  sections.] 


Utah   20,    57   Pac.    720,   45    L. 

K.  A.  603    155,316 

Shreveport  v.  Levy,  26  La.  Ann. 

671,  21  Am.  Rep.  553 470 

Shrieve  v.  Stokes,  8  B.  Mon.  (47 

Ky.)  453,  48  Am.  Dec.  401  ...   424 
Shriver  v.  Stephens,  20  Pa.  St. 

138     444 

Shuman  v.  City  of  Ft.  Wayne, 

127  Ind.  109,  26  N.  E.  560,  11 

L.  R.  A.  378   38 

Siebold,    Ex    Parte,    100    U.    S. 

371    65 

Sifers  v.  Johnson,  7  Idaho  798, 

65  Pac.  709,  54  L.  R.  A.  785.  .   171 

Sigel  V.  Jebb,  3  Stark.  1  192 

Simon  v.  Craft,  182  U.  S.  427. . .   252 
Simon's    Executors   v.    Gratz,    2 

Pa.  412    469 

Sinclair  v.  State,  69  N.  C.  47.  .   710 
Sing  Lee,  Ex  Parte,  96  Cal.  354, 

31  Pac.  245,  24  L.  R.  A.  195, 

31  Am.  St.  Rep.  218 645 

Singer  v.  Maryland,  72  Md.  464, 

19  Atl.  1044,  8  L.  R.  A.  551.  .   646 
Singer  Mfg.  Co.  v.  Fleming,  39 

Neb.  679,  58  N.  W.  226,  23  L. 

R.  A.  210    301 

Sinking  Fund   Cases,   99  U,   S. 

727   363 

Sinnot    v.    Davenport,    et    als., 

Commissioners  of  Pilotage  of 

Bay    and    Harbor    of    Mobile, 

22  How.  227    41 

Sinsheimer   v.   United    Garment 

Workers,   77   Hun.   215,   28   N. 

Y.  Supp.  321   326 

Sioux  Falls  V.  Kirby,  6  S.  D.  62, 
60  N.  W.  156,  25  L.  R.  A.  621.   643 

Skaneateles,  etc.,  Water  Com- 
pany V.  Skaneateles,  161  N.  Y. 
154,  46  L.  R.  A.  687,  55  N.  E. 
562   677,  701 

Skaneateles,  etc.,  Water  Com- 
pany V.  Skaneateles,  184  U.  S. 
354    677,  701 

Slaughter  House  Cases,  16  Wall. 
36  ....219,  577,  609,  669,  671,  680 


Slosser  v.  Salt  River  Valley 
Canal  Co.  (Ariz.),  65  Pac 
332     ...417 

Smiley  v.  McDonald,  42  Neb.  5, 
60  N.  W.  355,  27  L.  R.  A.  540, 
47  Am.  St.  Rep.  691 670 

Smith,  Ex  Parte,  38  Cal.  702, 
244,  703 

Smith,  Ex  Parte,  135  Mo.  223, 
68  S.  W.  628,  33  L.  R.  A.  606, 
58  Am.  St.  Rep.  576 457 

Smith,  Re,  146  N.  Y.  68,  40  N. 
E.  497,  28  L.  R.  A.  820,  48 
Am.  St.  Rep.  769   446 

Smith  V.  Alabama,  124  U.  S. 
465    73,  116 

Smith  V.  Arnold,  106  Mass.  269.   274 

Smith  V.  Brooklyn,  160  N.  Y. 
357,  54  N.  E.  787,  45  L.  R.  A. 
664     425 

Smith  V.  Chamberlain,  38  S.  C. 
529,  17  S.  E.  371,  19  L.  R.  A. 
710     695 

Smith  V.  Johnson,  76  Pa.  St.  191  444 

Smith  V.  Lane,  24  Hun  632 ..  .   133 

Smith  V.  Maryland,  18  How.  71.   525 

Smith  V.  People,  65  111.  375 252 

Smith  V.  Rochester,  92  N.  Y. 
463,  44  Am.  Rep.  393   408 

Smith  V.  St.  Louis  and  South- 
western Railway  Co.,  181  U.  S. 
284    77,   136,  138 

Smith  V.  State,  155  Ind.  611,  58 

N.  E.  1044,  51  L.  R.  A.  404.516,  635 
Smith  V.  State,  100   Tenn.  494, 

46  S.  W.  566,  41  L.  R.  A.  432.  .   699 
Smith     V.     Turner      (Passenger 

Cases),  7  How.  283 2,  45,  271 

Smyth  T.  Ames,  169  U.  S.  466.  . 

73,  384,  550,  553,  554,  611 

Snell,  In  re,  58  Vt.  207 193 

Snell  V.  Cincinnati  Street  R.  R. 
Co.,  60  Oh.  St.  256,  54  N.  E. 

270   714 

Snow  V.  Parsons,  28  Vt.  459,  67 

Am.  Dec.  723 425 

Soby  V.  People,  31  111.  App.  242  202 


Ixxviii 


TABLE  OF  CASES  CITED. 
[refekexces  are  to  sections.] 


Society  for  the  Prop,  of  the  Gos- 
pel V.  New  Haven,  8  Wh.  464.  . 
Soon  Hing  v.  Crowley,  113  U.  S. 

703 ''-^> 

Soper    V.    Harvard    College,     1 

Pick.  177,  11  Am.  Dec.  159   .. 
Soules  V.  Robinson,  158  Ind.  97, 

60  N.  E.  726,  6-2  N.  E.  999.. 
South     Covington     &c.     Street 

Car  Co.  V.  Berry,  93  Ky.  43, 

15  L.  K.  A.  (3ti4 

South   and    North    Alabama   E. 

Co.  V.  Morris,  65  Ala.  193 

South      Eastern     Ry.      Co.      v. 

Railway   Commissioners,   L.  P. 

6  g.  B.  Div.  5S6 

Sparf  V.  United  States,  156  U. 

S.   129    

Specht  V,  Commonwealth,  8  Pa. 

St.  312,  49  Am.  Dec.  518  .    185, 
Spencer,    Town    of    v.    Andrew, 

82  la.  14,  47  N.   W.   in07,  12 

L.  R.  A.  115 16.3,  581 

Spies  V.   People,   122    III.   1,   12 

N.  E.  865,  17  N.  E.  898,  3  Am. 

St.  Rep.  320  476, 

Spiller  V.  Wnburn,  12  Allen,  127 

Spinney,  Ex  Parte,  10  Nev.  323. 
646,  6S4, 

Spmijfue   et   als.    v.    Thompson, 
118  r.  S.  90 72,  117, 

Hprinjr  v.  Hydo  Park,  137  Mass. 
.',.'■•4,  .''.0  Am.  R.'p.  334  .508,  511, 

BprinK   Valley   Water   Wurks   v. 
'.no  IT.  R.  347 

Hj.   K   ^'1,  City  of,  V.  Jacobs, 
7.T  S.  W.  1097 

8prinKfl«'ld  v.  RprinKfioId  Sfroot 
R.  Co.,  182  MnM.  41,  04  N.  E. 


595 
736 
267 
252 

116 

727 

395 
473 

470 


477 
463 

711 

135 

512 

376 

292 


HpHnjfflcId  R.  Co.  r.  Springfield, 

Mo.  017   

'     '■    ".  Wall.  119 

y,  26  Me,  191. 
Htanlon  v.   Allen,  ii   Denlo   (N. 
Y.)  43<.  49  Am.  Dor.  282.  .347, 

HUrk  V.   Millor.  3   .Mo.  470 

ntaU  V.  Adnms,  44  Mo.  570.507, 


576 

576 
590 
567 

:\r,i 

608 
599 


State  V,  Addington,  2  Bailey  L, 
516,  23  Am.  Dec.  150 104 

State  V.  Addington,  77  Mo.  110. 
284,  541 

State  V.  Addy,  14  Vroom  113, 
39  Am.  St.  Rep.  547    108 

State  V.  Allmond,  2  Houst. 
(Del.)  612 214,  515,539 

State  V.  Ambs,  20  Mo.  214 470 

State  V.  Armstrong,  106  Mo.  395, 
16  S.  W.  604,  13  L.  E.  A.  419, 
27  Am.  St.  Rep.  361 301 

State  V.  Austin  Club,  89  Tex.  20, 
33  S.  W.  113,  30  L.  R.  A.  500.  .   456 

State  V.  Bailey,  157  Ind.  324,  61 
N.  E.  730   264 

State  V.  Barge,  82  Minn.  256,  84 

N.  W.  911,  53  L.  R.  A.  428 

244.   526,  542 

State  V.  Barnes,  32  S.  C.  14,  10 
S.  E.  611,  6  L.  R.  A.  743,  17 
Am.  St.  Rep.  832   104 

State  V.  Beardsley,  108  la.  396, 

79  N.  W.  138  407 

State  V.  Benadom,  79  la.  90,  44 

N.  W.  218 223 

State  V.  Bordetta,   73  Ind.  185, 

38  Am.  Rep.  117 162 

State  V.  Berlin,  21  S.  C.  292,  52 

Am.  Rep.  677   688 

State  V.  Bi'swick,   13  R.  I.  211, 

43  Am.  Rep.  26 96 

State  V.  Billings,  55  Minn.  467, 
57  N.  W.  794,  43  Am,  St.  Rep. 

525   254 

State  V.  Board  of  Commissioners 

of  Polk  County,  87  Minn.  32.').   441 
State  V.  Boar.I  of  Health  of  St. 
Louis,  16  Mo.  App.  8 176,  520 

State  V.  Bogardus,  4  Mo.  Apj). 

215   249 

State  V.  Bohcmier,  96   Me.   257, 

52  Atl.  6):i  711 

State  V.  Bonner,  2  Head.  135..  722 
State    V.    Boston    Club,    45    La. 

Ann.  .WS,  12  So.  895,  20  L.  R. 

A.  185   456 


TABLE  OF  CASES  CITED. 


Ixxix 


[references  are  to  sections.] 


720 


32 


State  V.  Botkin,  71  Iowa  87,  32 

N.  W.  185,  60  Am.  Eep.  780. 

246,  722 

Steele  v.  Brannan,  41  L.  J.  M. 

C.    85 ..   237 

State  V.  Brennan  'a  Liquors,   25 

Conn.  278   218 

State  V.  Brown,  31  Me.  522 223 

State  V.  Brunell,  29  Wis.  435..   245 
State  V.  Burgdoerfer,  107  Mo.  1, 

17  S.  W.  646,  14  L.  R.  A.  846.    729 
State  V.  Burgoyne,  75  Tenn.  173, 

40  Am.  Eep.  60    564 

State  V.  Buswell,  40  Neb.  158, 

58  N.  W.  728,  24  L.  R.  A.  68 

133,  468 

State  V.  Cadigan,  73  Vt.  245, 

50  Atl.  1079,  57  L.  R.  A.  666, 

87  Am.  St.  Rep.  714 

State  V.  Campbell,  64  N.  H.  402, 

13  Atl.  585,   10   Am.  St.  Rep. 

419   

State  T.  Carey,  4  Wash,  424,  30 

Pac.   729   152 

State  V.  Cassidy,  22  Minn.  312, 

21  Am.  Rep.  765 623 

State  V.  Gate,  58  N.  H.  240.  .175,  464 
State    V.    Certain     Intoxicating 

Liquors  and  Cummings,  Claim- 
ant, 76  la.  243,  41  N.  W.  6,  2 

L.  R.  A.  408 32 

State  V.  Chandler,  2  Harr.  533.   465 
State   V.    Chandler,   5   La.   Ann. 

489,  52  Am.  Dec.  599 90 

State  V.   Chicago,   Milwaukee  & 

Saint    Paul   R.    Co.,    68    Minn. 

381,  71  N.  W.  400,  38  L.  R.  A. 

672,  64  Am.  St.  Rep.  482 397 

State  V.  Cincinnati,  19  Oh.  178.   698 
State  V.  City  of  New  Orleans, 

27   La.   Ann.   521 123 

State  V.  Claiborne,  19  Tenn.  331  691 

State  V.  Clarke,  54  Mo.  117 245 

State   V.   Conlon,   65  Conn.   478, 

33  Atl.  519,  31  L.  R.  A.  55,  48 

Am.  St.  Rep.  227   653 

State   V,   Consadine,   16   Wash. 

358,  47  Pac.  755 703 


State  V.  Corbett,  57  Minn.  345, 
59  N.  W.  317,  24  L.  R.  A.  498. 


61,291 


State  V.  Corrigan  Cons.   St.   R. 

Co.,    85   Mo.    263,   55   Am.   St. 

Rep.  361    r,7G 

State  V.  Corson,  67  N.  J.  L.  178, 

50  Atl.  780  712 

State  V.  Creditor,  44  Kan.  565, 

24  Pac.   346,   21  Am.  St.  Rep. 

300   684, 

State  V.  Creeden,  78  la.  556,  43 

N.  W.  673,  7  L.  R.  A.  295.... 
State  V.  Crescent  Creamery  Com- 
pany, 83  Minn.  284,  86  N.  W. 

107,  54  L,  R.  A.  466,  85  Am. 

St.  Rep.   464    

State  V.  Cullins,  53  Kans.   100, 

36  Pac.  56,  24  L.  R.  A.  212 

State  V.  Dalton,  22  R.  I.  77,  46 

Atl.   234,  48  L.  R.  A.   775,  84 

Am.  St.  Rep.  818 60,  198, 

State  V.  Davis,  108  Mo.  666,  18 

S.  W.  894,  32  Am.  St.  Rep.  640 
State  V.  Divine,  98  N.  C.  778,  4 

S.    E.    477 637, 

State  V.  Donaldson,  32  N.  J.  L. 

151,  90  Am.  Dec.  649 

State  V.  Donaldson,  41  Minn.  74, 

42  N.  W.  781   149, 

State   V.   Duffy,    7   Nev.    342,    8 

Am.  Rep.   713    

State  V.  Dupaquier,  46  La.  Ann. 

577,   15   So.   375,   26  L.  R.   A. 

162,  49  Am.  St.  Rep.  334 

State  V.  Easton  Social  Club,  73 

Md.  97,  20  Atl.  783,  10  L.  R. 

A.  64  

State  V.  Edens,  85  N.  C.  522.33, 
State  V.  Edwards,  86  Jle.  102, 

29  Atl.  947,  25  L.  R.  A.  505,  41 

Am.  St.  Rep.  528 376,  378 

State  V.  Essex  Club,  53  N.  J.  L. 

99,   20   Atl.   769    456 

State  V.  Fagan,  22  La.  Ann.  545  669 
State  V.  Fairfield,  37  Me.  517.  .  539 
State    V.    Fire    Creek    Coal    & 

Coke  Co.,  33  W.  Va.  188..320,  735 


711 
231 

32 
722 

293 
53 
688 
331 
650 
698 

519 


456 
168 


Lxxx 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


29: 


'35 


231 


State  V.  Fiske,  9  R.  I.  94 643 

State  V.  Fleming,  32  Kans.  588, 

5  Pac.  19   223 

State  V.   Forcier,  65  N.  H.  42, 

17  Atl.  577 646 

State  V.  Foster,  22  E.  I.  163,  46 

Atl.  833,  50  L.  R.  A.  339.  .58,  p.  53 
State  V.  Foster,  21  R.  I.  251,  43 

Atl.  66.  50  L.  R.  A.  339 

State  V.  Frederick,  45  Ark.  347, 

55  Am.  Rep.  555 

State  V.  Fulker,  43  Kan.  237,  22 

Pac.  1020,  7  L.  R.  A.  183 

State  V.  Gallagher,  4  Mich.  244.   214 
State  V.  Garbroski,  111  la.  496, 

56  L.   R.   A.   570,   82   Am.   St. 
Rep.  524   497,  732 

State  V.  Gardner,  58  Oh.  St.  599, 

41  L.  R.  A.  689,  51  N.  E.  136, 

65  Am.  St.  Rep.  785   

493,  497,  646,  732 

State  V.  Gerhardt,  145  Ind.  439, 

44  X.  E.  469.  33  L.  R.  A.  313.  .      52 
State  V.  Gibson,  36  Ind.  389,  10 

Am.  Rep.  42 

State    V.    Gilliland,    51    W.    Va, 

27H,    II   S.   !•:.   131,  57  T,.  R.  A, 

126,  90  Aim.  St.   Rop.   79.? 

State    V.    Goodwill,    33    W.    Va. 

179,  10  S.   E.  28.5,  6  L.  R.  A. 

621,  25  Am.  St.  Rep.  863.  .  .320,  735 
State  V.  Gravett,  65  Ohio  State 

:M»,  62  N.  E.  325,  55  L.  R.  A. 

791.  87  Am.  St.  Rep.  605.  .  .152,  .546 
State  V.  Green,  112  Ind.  462,  14 

N.  E.  352   711 

Stale  V.  GroRory,  83  Mo.  123,  53 

Am.  Rpp.  565 647 

Stale  V.  Grit7.n«T,    1.^4    Mo.  512, 

.16  S.  W,  .39 201 

State  V.  GuinneiiN,  16  R.   I.  401, 

16  Atl,  910 32 

StafP  V.  Gnrnoy,  .37  Me.  1.56,  58 

Am.  Dcr.  7HL' 214 

Rtnle  V.   Hahrrle.   72   Town    138, 

33  N.  W.  461  .    L'45 

^'    '<•  V.  H:iitn'>i.  :»0   Mi..  45 193 

•     •     HiiirHfon,  63  N.  C.  151  .    697 


69/ 


109 


State  V.  Hall,  32  N.  J.  L.  158. . 

in 

State  of  Vermont  v.  Harrington, 

68  Vt.  622,  35  Atl.  515,  34  L. 

R.  A.  100   

39,  40,  58,  p.  53,  292, 

State  V.  Hartfiel,  24  Wis.  60 

State  V,   Hartford,   New  Haven 

R.  Co.,  29  Conn.  538 

State  V.  Hathaway,  115  Mo.  36, 

21  S.  W.  1081   

State  T.  Haun,  61  Kan.  146,  59 

Pac.  .340,  47  L.  R.  A.  .369 

320,   724, 

State  V.  Hawley,  3  Mi.li.  330.. 
Slate  V.  Hawthorn,  9  Mo.  389.  . 
State  V.  Hay,  126  N.  C.  999,  49 

L.  R.  A.  588,  35  S.  E.  459,  78 

Am.  St.  Rep.  691 

State  V.   Hennepin   County   Dis- 
trict Court,  42  Minn.  247,  44  N. 

W.  7,  7  L.  R.  A.  121 

State  V.  Higgs,  126  N.  C.  1014, 

.35  S.  E.  473,  48  L.  R.  A.  446.  . 
State  V.  Hill,  126  N.  C.  1139,  36 

S.  E.  320,  50  L.  R.  A.  473.. 641, 
Stale  V.  Hiniiiaii,  65  N.  IT.  10.3, 

18  Atl.  194,  23  Am.  St.  Rop.  22 
Slate  V.  Hipp,  38  Oh.  St.  199.  . 
Slate  V.   Ilohokon,   33   N.   J.   L. 

280    

State  V.  HogjHi,  63  Oh.  St.  202, 

5S    N.    E.    572,    52    L.    R.    A. 

86.3,  81   Am.  St.  Rep.  626 

90,  99,  491, 

State  V.  Hogrcivcr.  152  Ind.  652, 

53  N.  E.  921,  45  L.  R.  A.  504.  . 
State  V.  Tlolcoml),  68  la.  107.. 
State    V.    II. .1.1. 11.    1  I    n.ili    71, 

37   L.   K'.    A.    10.3 

State  V.  lloImcM.  3S  N.  H.  225. 
State  V.   Horacck.  41    Kans.   87, 

21  Pae.  204.  3  L.  R.  A.  587... 
State  V.  TIoHtollcr.  137  Mo.  6.36, 

39  S.  W.  270,  3S  ],.  R.  A.  208, 

59  Am.  SI.  Krp.  515 

State  V.  HiighcH,  72  N.  C.  25.. 
State  V.  Hunt,  129  N.  C.  686,  40 


193 


653 
635 


395 
683 


735 
214 
556 


447 

631 

163 

670 

684 
37 

162 

702 
721 

in 

l.tl 
56 1 

4.56 


701 
174 


TABLE  OF  CASES  CITED. 


Ixxxi 


[references  are  to  sections.] 


S.  E.  216,  85  Am.  St.  Rep.  758. 
38,    328,  489 

State  V.  Hunter,  106  N.  C.  796, 
1]  S.  E.  366,  8  L.  R.  A.  529.158,  168 

State  V.  Inhabitants  of  Free- 
port,  43  Me.  198 163 

State  V.  Inhabitants  of  Tren- 
ton, 53  N.  J.  L.  132,  11  L. 
R.    A.    410 116 

State  V.  Interstate  Savings  In- 
vestment Co.,  64  Oh.  St.  283, 
60  N.  E.  220,  52  L.  R.  A.  530, 
83  Am.  St.  Rep.  754 198 

State  V.  Jackman,  69  N.  H.  318, 
41  Atl.  347,  42  L.  R.  A.  438  . .   620 

State  V.  Jackson,  80  Mo.  175,  50 
Am.  Rep.  499 697 

State  V.  Johnson,  61  Kan.  803, 

60  Pac.  1068,  49  L.  R.  A.  662.    385 

State  V.  Jones,  39  Vt.  370 454 

State  V.  Judge  of  Circuit  Court, 

50  N.  J.  L.  585,  1  L.  R.  A.  86.  217 
State  V.  Julow,  129  Mo.  163,  31 

S.  W.  781,  29  L.  R.  A.  257,  50 

Am.  St.  Rep.  443 326,  735 

State  V.  Justus,  85  Minn.  279,  88 

N.  W.  759,  89  Am.  St.  Rep.  550  327 

State  V.  Kalb,  14  Ind.  403 635 

State    V-    Karstendiek,    49    La. 

Ann.  1621,  22  So.  845,  39  L.  R. 

A.  520   249 

State  V.  Kean,  69  N.  H.  122,  45 

Atl.  256,  48  L.  R.  A.  102 162 

State  V.  Kenilworth  (N.  J.),  54 

Atl.    244    59 

State  V.  Kingsley,  108  Mo.  135, 

18  S.  W.  994 731 

State    V.    Kreuzberg,    114    Wis. 

530,  90  N.  W.  1098 326 

State  V.  Laffer,  38  Iowa  422  ...  221 
State  V.  Lancaster,  63  N.  H.  267  710 
State  V.  Larrimore,  19  Mo.  391.  223 
State  V.   Layton,   160  Mo.   474, 

61  S.  W.  171,  83  Am.  St.  Rep. 
487  32 

State  V.  Lewis,  134  Ind.  250,  33 
N.  E.  1024,  20  L.  R.  A.  52  ...    527 


State   V.   Loeffring,   61   Oh.   St. 

39,  46  L.  R.  A.  168 133 

State   V.   Loomis,   115   Mo.   307, 

22S.  W.  350,  21  L.  R.  A.  789.. 

320,   611,735 

State  V.  Ludington,  33  Wis.  107  626 
State   V.   McCann,   21    Ohio   St. 

198   698 

State  V.  McKee,  73  Conn.  18,  46 

Atl.  409,  49  L.  R.  A.  542,  84 

Am.  St.  Rep.  124 248,  472 

State  V.  MacKnight  (N.  C),  42 

S.   E.  580    133 

State    V.    McMahon,    65    Minn. 

453,  68  N.  W.  77 727 

State  V.  Madden,  81  Mo.  421  .  .  .  613 
State   V.   Mahner,   43   La.   Ann. 

496,  9  Sou.  480   643 

State  V.  Main,  69  Conn.  123,  37 

Atl.  80,  36  L.  R.  A.  623,  61  Am. 

St.  Rep.  30  144,  520 

State  V.  Manual,  4  Dev.  (N.  C.) 

20   691 

State  V.  Marsh,  37  Ark.  356 232 

State  V.  Marshall,  64  N.  H.  549, 

15  Atl.  210,  1  L.  R.  A.  51.... 

49,  58,  p.  53,  284 

State  V.  Martin,  34  Ark.  340.  . .  221 
State  V.  Marvin,  12  Iowa  499.  .  240 
State  V.  Medbury,  3  R.  I.  138..   712 

State  V.  Miller,  50  Mo.  129 556 

State    V.     Mitchell,     3    Blackf. 

(Ind.)   229   90 

State  V.  Mitchell,  97  Me.  66,  53 

Atl.   887    724 

State    V.    Montgomery,    92    Me. 

433,  43  Atl.  13 288,  289 

State  V.  Moore,  104  N.  C.  714..  93 
State  V.  Moore,  113  N.  C.  697, 

18  S.  E.  342,  22  L.  R.  A.  472.. 

38,  58.  328,  489 

State    V.    Morris,    47    La.    Ann. 

1660,  18  So.  710   521 

State  V.  Morris.  77  N.  C.  512.  .  563 
State  V.  Mugler,  29  Kans.  256.  541 
State  V.  Muncey,  28  W.  Va.  494  221 
State  V.  Myers,  42  W.  Va.  822, 

26  S.  E.  539,  35  L.  R.  A.  844, 


Ixx-sii 


TABLE  OF  CASES  CITED. 
[references  ake  to  sections.] 


57   Am.  St.  Rep.   887 

49,  58,  p.  53,  284 

State  V.  Mvlod,  20  R.  I.  632,  40 

Atl.  753,  41  L.  R.  A.  428..  133,  468 
State  V.  Napier,  63  S.  C.  60,  41 

S.  E.  13    328, 489 

State  V.  Nash,  97  N.  C.  514,  2 

S.  E.  645    232 

State  V.  Neidt   (N.  J.  Ch.),  19 

Atl.   318    176 

State   V.   Neis,    108   N.    C.    787, 

13  S.  E.  225,  12  L.  R.  A.  412.  .   456 
State  V.  Nelson.  52  Oh.  St.  88, 

39  N.  E.  22,  26  L.  R.  A.  317..   735 
State  V.  Newark,  3  Dutch.   (N. 

J.),   185    441 

State  V.  New  Orleans,  C.  and  L. 
R.  Co.,   49  La.   Ann.   1571,   22 

So.  839,  39  L.  R.  A.  618 613 

State  V.  Noyes,  47  Me.  189..363,  :^97 
State  V.  Noyes,  30  N.  H.  279.  .  .    193 
State  V.  Ohio  Oil  Co.,   150  Ind. 
21,  49  N.  E.  809,  47  L.  R.  A. 

627   422 

State   V.   Olympic   Club,   46   La. 

935,  15  So.  190,  24  L.  R.  A.  452  248 
State  V.   Orr,  68  Conn.   101,   35 
Atl.  77(1.  34  L.  R.  A.  279.  .  .522,  ("O 

State  V.  Paul,  5  H.  1.  185 

214,  515,539 

State  V.  IVol  Splint  Coal  Co.,  36 
W.    Va.    «02,   15   S.    K.    1000.. 

.'iOL',  7:»5 

State  V.  IVnnoyor,  65  N.  II.  1  Kt, 

1«  All.  H78,  5  L.  R.  A.  7()9..133,  684 
Hlnlo  V.  iVterH,  43  Ohio  St.  629, 

4  N.   K.  H!    105 

State  V.  IMit,  74  Minn.  37(1,  77 

N.  W.  225 7.15 

aintn  V.  Porter,   112  N.  C.  887, 

16  H.   K.  915    219 

Btnto  V.  Pf.woll,  5S  Ohio  St.  .T24, 

r.O  N.  E.  900,  41   I,.  H.  A.  854.    1 H5 
Hfnto  V.  Hand,  51   N.  H.  361,  12 

Am.  Hop.  127 722 

Hlalf  V.  Rnmlnlph,  23  Oregon 
74.  31  Par.  'jni.  17  Ti.  R.  A. 
470,  37  Am.  St.  Rep.  0G5 684 


State  V.  Ray,  63  N.  H.  406,  56 

Am.  Rep.  529 261 

State  V.  Ray,  131  N.  C.  814,  42 

S.  E.  960    186 

State  V.  Read,  12  R.  I.  137.  .175,464 
State  V.  Reid,  1  Ala.  612,  35  Am. 

Dec.  44   90 

State  V.  Robbins,  124  Ind.  308, 

24  N.  E.  978,  8  L.  R.  A.  438.  .   526 
State  V.  Rodman,  58  Minn.  393, 

59  N  .W.  1098 419,  422,  516 

State  V.  Rohart,   83  Minn.   257, 

54  L.  R.  A.  947    168 

State  V.  Ryan,  70  Wis.  676,  36 

N.  W.  823' 227 

State  of  Iowa  v.  Santee,  111  la. 
1,  53  L.  R.  A.  763,  82  Am.  St. 

Rep.  489  34, 673 

State  V.  Sargent,  45  Conn.  358. 

406,  576 

State  V.  Sarradat,  46  La.  Ann. 
700,  15  So.  87,  24  L.  R.  A.  584. 

641,  667 

State    V.    Schlemmera,    42    La. 

Ann.  11G6,  10  L.  R.  A.  135.  .  .    127 
State    V.    Schlenkcr,    112    Iowa 
642,   84   N.   W.   698,   51   L.   R. 
A.  347,  84  Am.  St.  Rep.  360.  .      32 
State  V.  Scougal,  3  S.  D.  55,  51 
N.  W.  858,  15  L.  R.  A.  477,  44 

Am.  St.  Rep.  756 219,  364,  401 

State  V.   Sharplcss    (Wash.),  71 

Pac.  737    494 

State  V.  Sherod,   80   Minn.  446, 
83  N.  W.  417,  50  L.  R.  A.  660, 

81   Am.  St.  Rep.  268   41 

State  V.  Sinks,  42  Oh.  St.  345.37,  207 
St:.to  V.  Smyth,  14  R.  I.  100,  51 

Aim.    H.']..    :!11    280 

State   V.   Snow,   81    Ta.   642,   47 

N.  W.  777,   11   L.  R.  A.  3.55..     41 
St.ite  V.  Standish,  37  Kans.  643, 

10  Pac.  66   454 

State   V.    S.    S.    Constitution,    42 

Cm  I.  578,  10  Am.   Hep.  303 705 

Stiitf.   V.   Str.'lf.,   106    N.   C.   766, 

11  S.  E.  478,  8  L.  R.  A.  516. . .   386 


TABLE  OF  CASES  CITED. 


Ixxxiii 


[references  are  to  sections.] 


130 


360 


state  V.  Stovall,  103  N.  C.  416, 
8  S.  E.  900 175,464 

State  V.  Stucker,  58  Iowa  496.  .    232 

State  V.  Taft,  118  N.  C.  1190, 
32  L.  E.  A.  122 

State  V.  Taylor,  55  Oh.  St.  61, 
44  N.  E.  513   

State  V.  Tenant,  110  N.  C.  609, 
14  S.  E.  387,  15  L.  E.  A.  423, 
28  Am.  St.  Bep.  715 643 

State  V.  Thompson,  160  Mo.  333, 
60  S.  W.  1077,  54  L.  E.  A.  950, 
83  Am.  St.  Eep.  468...195,  651,  730 

State  V.  Topeka,  36  Kane.  76, 
12  Pac.  310,  59  Am.  Eep.  529.  .   421 

State     V.     Travelers'    Insurance 

Company,  70  Conn.  590,  40  Atl. 

465,  66  Am.  St.  Eep.  138 707 

State  V.  Tutty,  41  Fed.  753,  7 

L.  E.  A.  50   697 

State   V.   Vandersluis,   42   Minn. 

129,  43  N.  W.  789,  6  L.  E.  A. 

119    133,  684 

State  V.  Vankirk,  27  Ind.  121..     89 
State  V.  Van  Doran,   109  N.  C. 

864,   14  S.  E.  32 133,  711 

State  V.  Van  Wye,  136  Mo.  227, 

37  S.  W.  938,  58  Am.  St.  Eep. 

627   248,  472 

State  V.  Vineland,  56  N.  J.  L. 

474,  23  L.  E.  A.  685 

State  V.  "Walker,  36  Kan.  297,  13 

Pac.  279,  59  Am.  Eep.  556  ... 
State  V.  Walruff,  26  Fed.  178.  .  . 
State  V.  Walsh,  136  Mo.  400,  37 

S.  W.   1112,  35  L.  E.   A.  231. 

195,  730 

State  V.  Ward,  41   Fed.   753,  7 

L.  E.  A.  50 697 

State  V.  Weir,  33  Iowa  134,  11 

Am.  Eep.  115    217 

State  V.  Wheeler,  25  Conn.  290.  .   214 
State  V.  White,  64  N.  H.  48,  5 

Atl.   828    468 

State  V.  Wiggin,  64  N.  H.  508, 

15  Atl.  128,  1  L.  E.  A.  56 710 

State  V.   Williams,   30   N.  J.  L. 

102   245,  626 


160 

241 

540 


State  V.  Williams,  32  S.  C.  123, 

10  S.  E.  876 451 

State   V.    Wilson,    61    Kans.    32, 

60  Pac.  1054,  47  L.  E.  A.  71..44,  394 
State  V.  Wilson,  43  N.  H.  415, 

82  Am.  Dec.  163 176,  529 

State    V.    Woodman,    26    Mont. 

348,   67  Pac.   1118    722 

State  V.  Woodward,  89  Ind.  110  563 
State   of   Indiana   v.   Woram,   6 

Hill   (N.  Y.)    33,  40  Am.  Dec. 

378   22 

State  V.  Wordin,  56  Conn.  216, 

14  Atl.  801   613 

State   V.   Workman,    35   W.   Va. 

367,  14  S.  E.  9,  14  L.  E.  A.  600     95 

State  V.  Wray,  72  N.  C.  253 223 

State  V.  Zeno,  79  Minn.  80,  81 

N.    W.    748,   48   L.    E.    A.    88, 

79  Am.  St.  Eep.  422 494,  646 

State  ex  rel.  Monuett  v.  Adams, 

58  Oh.  St.  612,  51   N.  E.   135, 

41  L.   E.   A.   727,   65  Am.   St. 
Eep.  792   701 

State  ex  rel.  George  v.  Aiken, 

42  S.  C.  222,  20  S.  E.  221,  26  L. 

E.  A.  345 218,  666 

State  ex  rel.  Wyatt  v.  Ash- 
brook,  154  Mo.  375,  55  S.  W. 
627,  48  L.  E.  A.  265,  77  Am.  St. 
Eep.  765   494,611 

State  ex  rel.  Star  Publishing 
Co.  V.  Associated  Press,  159 
Mo.  410,  60  S.  W.  91,  51  L. 
E.  A.  151,  81  Am.  St.  Rep. 
368     386 

State  ex  rel.  Chapman  v.  Board 
of  Medical  Examiners,  34 
Minn.  387,  26  N.  W.  123 546 

State  ex  rel.  Auburn  School 
District  v.  Boyd,  63  Neb.  829, 
89  N.  W.  417,  58  L.  R.  A.  108..     37 

State  ex  rel.  Curtis  v.  Brown  and 
Sharpe  Mfg.  Co.,  18  R.  I.  16, 
25  Atl.  246,  17  L.  E.  A.  826. . 
320,  715 

State  ex  rel.  Monnett  v.  Buck- 


Ixxxiv 


TABLE  OF  CASES  CITED. 
[references  are  to  sections.] 


eye  Pipe  Line  Co.,  61  Oh.  St. 

5-20,  56  N.  E.  464 355 

State  ex  rel.  Adams  v.  Burdge, 
95  Wis.  390,  70  N.  W.  347,  37 
L.  K.  A,  157,  60  Am.  St.  Rep. 


1: 


447 


h^late  ex  rel.  Ossenkop  v,  Cass 
County  Commissioners,  12  Neb. 

54,  10  N.  W.  571 651 

State  ex   rel.  Corcoran  v.  Chap- 
el, 64  Minn.  130.  66  N.  W.  205..  419 
State  ex   rel.   Tompkins  v.   Chi- 
cago, St.  P.,  M.  ic  O.  R.  Co.,  12 
S.  D.  305,  81  N.  W.  503,  47  L. 

H.  A.  569   395 

State  ex  rel.  Coffey  v.  Chitten- 
den,  112   Wis.   569,   88   N.   W. 

587    647 

.St:ite  ex  rel.  Bruns  v.  Claus- 
meier  et  al..  154  Ind.  599.  57  N. 
E.  541,  50  L.  R.  A.  73,  77  Am. 

St.   Rep.  511    103 

State  ex  rel.  Wood  v.  Con- 
Hiimers    Oas    Trust     Co.,     157 

Ind.  .345,  61   N.  E.  674 387 

State  ex  rel.  Alwater  v.  Ddii 
ware,  La«'ka\vanna  and  Wost- 
.■rn  R.  Co.,  4H  N.  .T.  L.  .').5,  2 
Atl.  80.1,  r,7  .\m.  R<"i>.  54:5...  387 
State  ex  n-l.  (iarralcid  v.  Dt-r- 
injf,  84  Win.  585,  54  N.  W. 
1104,   19  L.  R.  A.  858,  .16  Am. 

Ht.  R<'p.  913 46S,  013,  729 

State  ex  rel.  WciHH  v.  DiHtrict 
Hoard.  76  WIb.  177,  44  N.  W. 
967,   7    L.    R.    A.    733,   20   Am. 

St.  Rep.  41    463 

Btnto  ox  rel.  Alexander  v.  Kliza- 
Uth,  rM  N.  .1.  L.  71,  28  Atl.  51, 

LM  ]..  R.  A.  r,'.'.'} 6H7 

Stale  vt  r«d.  Witter  v.  Ff)rkn<>r, 
94  Iowa  1.  02  N.  W.  772,  28  I,. 

R.  A.  206   217 

St    -    rrl.    Att'y    Oen'I    v. 

<  ,  r,(\  Oh,  St,  rtirt,  47  N. 

K.   SSI,   38   L.    R,    A.   519,   60 

Am.   SI.    R.-p.    7.''.rt 4.35 

Stall*  «s  rel.  Wfidemnn  v.  Hor- 


gan,   55   Minn.   183,  56   N.  W. 

688   284 

State  ex  rel.  Corwin  v.  Indiana 

&  Ohio  Oil  Gas  Co.,   120   Ind. 

575,  22  N.  E.  778,  6  L.  R.  A. 

579    420 

State  ex  rel.  Ives  v.  Kansas  Cen- 
tral R.   R.   Co.,  47   Kans.   497, 

28  Pac.  208 387,  395 

State  ex  rel.  Bethell  v.  Kilving- 

ton,   100   Tenn.   227,  41   L.   R. 

A.  284,  45  S.  W.  579 262 

State   ex   rel.   Johnson   v.   Lutz, 

136  Mo.  633,  38  S.  W.  323  ...   647 
State    ex    rel.    Graham    v.    Mc- 

Mahon,    65    Minn.    453,    68    N. 

W.   77    727 

State  ex  rel.  Columbia  Club  v. 
Mc.Master,  35  S.  C.  1,  14  S.  E. 
290,  28  Am.  St.  Rep.  S26 456 

State  ex  rel.  Remky  v.  Meek, 
112  la.  338,  84  N.  W.  3,  51 
L.  R.  \.  414,  89  Am.  St.  Kep. 
342    407,  418 

State  ex  rel.  Chiids  v.  Minnc- 
tonka,  57  Minn.  526,  59  N.  W. 
315,  25  L.  R.  A.  755   688 

State  ex  rel.  St.  Louis  Under- 
ground Service  Co.  v.  M\irphy, 
134  Mo.  548,  31  S.  W.  784,  34 
S.  W.  51,  35  S.  W.  1132,  34  L. 
R.  A.  369,  .56  Am.  St.  Rep.  515  678 

State  ex  rel.  Field  v.  City  of 
New  Orleans,  27  La.  Aim.  5_M  .    446 

State  ex  rel.  H.-iyles  v.  Newton, 
50  N.  .1.  L.  549,  18  Atl.  77 284 

State  ex  rel.  Waterhury  v.  New- 
ton, ,50  N.  .1.  L.  n:!4,  14  Atl. 
604     284 

State  ex  rel.  Attorney  General  v. 
PeterH,  43  Ohio  St.  629,  4  N. 
E.  81    105 

State    ex     rel.     Walker    v.    Or 
loanH,     .Indue,     .'!9     La.     Ann. 
132.    1    So.    437 185 

State  ex  rrl.  Marion  v.  Rey- 
noldH,  14  Mont:  383,  3(5  l':ie. 
449     703 


TABLE  OF  CASES  CITED. 


Ixxxv 


[references  are  to  sections.] 


State  ex  rel.  Duensing  v.  Roby, 
142  Ind.  268,  41  N.  E.  145,  33 

L.  R.  A.  213 194 

State   ex   rel.   Jennison   v,   Rog- 
ers, 87  Minn.  130,  58  L.  R.  A. 

663   436 

State  ex  rel.  Bell  v.  St.  Louis 
Club,    125    Mo.   308,   28   S.   W. 

604,  26  L.  R.  A.  573    546 

State  ex  rel.  Freeman  v.  Scheve 

(Neb.),  93  N.  W.  169 463 

State  of  Minnesota  ex  rel. 
Minces   v.   Schoenig,   72   Minn. 

528,  75  N.  W.  711 39,  58,  292 

State  ex  rel.  Attorney  General 
V.  Schweichardt,  109  Mo.  496, 

19  S.  W.  47   670 

State  ex  rel.  Attorney  General 
V.  The  Simmons  Hardware 
Company,   109   Mo.   118,   18   S. 

W.  1125,  15  L.  R.  A.  676 

State  ex  rel.  Board  of  Transp. 
V.  Sioux  City,  O.  and  W.  R.  Co., 
46  Neb.  682,  65  N.  W.  766,  31 

L.  R.  A.  47 

State  ex  rel.  Watson  v.  Stand- 
ard Oil  Company,  49  Oh.  St. 
137,  30  N.  E.  279,  15  L.  R.  A. 

145,  34  Am.  St.  Rep.  541 350 

State  ex  rel.  Bishop  v.  State 
Board  of  Corrections,  16  Utah 

478,   52   Pac.   1090    105 

State,  ex  rel.  Luria,  v.  Wagener, 
69  Minn.  206,  72  N.  W.  67,  38 

L.  R.  A.  677 289,497,  732 

State  ex  rel.  Atty.  Gen.  v.  Wat- 
ers-Pierce  Oil   Co.    (Tex.),   67 

S.    W.    1057    356,  731 

State  ex  rel.  Burroughs  v.  Web- 
ster,   150   Ind.    607,   50   N.    E. 

750,  41  L.  R.  A.  212   543 

State  ex  rel.  O  'Connor  v.  Wolf er, 
53  Minn.  135,  54  N.  W.  1065, 
19   L.   R.   A.   783,   39   Am.   St. 

Rep.    582    107 

State  ex  rel.  Goodsill  v.  Wood- 
mansee,  1  N.  D.  246,  46  N.  W. 
970,  11  L.  E.  A.  420. . .  219,  364,  401 


53 


394 


State  on  Complaint  of  Zehner  v. 

Vankirk,  27  Ind.  121   89 

State   ex   rel.    Freeman    v.   Zim- 
merman, 86  Minn.  353,  !»U   .\. 

W.  783,  58  L.  R.  A.  78 -1^7 

State  to  the  use  of  the  School 

Fund    of    Gentry    County     v. 

The    Wabash,    St.    Louis    and 

Pacific  R.  Co.,  83  Mo.   144...   395 

Stearns    v.    Minnesota,    179    U. 

S.  223    .568,  579 

Steele  v.  Brannan,  41  L.  .1.  M. 

C.  85   237 

Stegenga,    In    re     (Mich.),    94 

N.    W.    385 99 

Stein  V.  Bienville   Water   Sup- 
ply  Co.,   141   U.   S.   67 675 

Stephen  v.  Reynolds,  6  N.  Y.  454  371 
Stevens  v.  Patterson  &  Newark 
R.  Co.,  34  N.  J.  Law  532,  3  Am. 

Rep.  269   408 

Stevens  v.  State,  2  Ark.  291,  35 

Am.  Dec.  72  193 

Stewart  v.  Salamon,  94  U.  S.  434  560 
Stickrod    v.    Commonwealth,    86 

Ky.  285,  5  S.  W.  580.  .516,  539,687 
Stimson  Mill  Co.  v.  Braun,  136 

Cal.  122,  68  Pac.  481,  57  L.  E. 

A.  726,  89  Am.  St.  Rep.  116.  .   626 
Stockton  v.  City  of  Newark,  42 

N.  J.  Eq.  531,  9  Atl.  203 565 

Stokes  &  Gilbert  v.  Corporation 

of  New  York,   14  Wend.   87..    274 
Stone  v.  Farmers'  Loan  &  Trust 

Co.        (Railroad       Commission 

Cases),  116  U.  S.  307.  .63,  380.  57ii 
Stone  V.  Graves,  145  Mass.  353, 

13  N.  E.  906   7.35 

Stone  v.  Mayor,  25  Wend.  157.   534 
Stone  v.   Mississippi,  101   U.  S. 

814 24,  362,  563,674 

Stone    v.    Wisconsin,    94    U.    S. 

181   379,572 

Story  V.  New  York  Elevated  R. 

Co.,  90  N.  Y.  122,  43  Am.  Rep. 

146   510 

Stoutenburgh     v.     Frazier,     16 


Ixxivi 


TABLE  OF  CASES  CITED. 

[REFERENCES   ARE  TO   SECTIONS.] 


95 


295 


691 


310 


10 


>S8 


vi; 


App.  Cas.  D.  C.  229,  48  L.  R. 

A.    220    

Stoutenburgh  v.  Hennick,  129  U. 

S.   141    

Strauder  v.  West  Virginia,  100 

U.  S.  303   

Street  v.  Varney  Electrical  Sup- 
ply Co.   (Ind.),  66  N.  E.  895.. 

Stuart,  City  of,  v.  Cunningham, 
88  la.  191,  55  N.  W.  311, 
L.  R.  A.  430   

Sturgea      v.      Crowinshield,      4 
Wheat.  122 306,  555,557 

Sullivan  v.  Lafayette  Co.  Super- 
visors,  58   Miss.   790    668 

Sullivan  v.  Oneida,  61  111.  242.  . 
526,528 

Sullivan  v,  Oregon  R.  and  N.  Co., 

19  Oregon  319,  24  Pac.  408  ..  .   629 
Summerville  v.  Pressley,  33  S. 

C.  56,  8  L.  R.  A.  845 

Surocco  v.  Geary,  3  Cal.  69,  58 

Am.   Dec.   385    

Susrjuehanna       Canal       Co.       v. 

Wright,  9  W.  &  S.  9,  42  Am. 

Der-.  312    

Sutton  V.  Clarke,  6  Taunt.  29.  . 
Swearingen    v.    United    States, 

nn   r.  s.  mg 636 

Sweeny  v.  Hunter,   145    Ta.   St. 

303,  22   Atl.   6.-3,    14   L.    H.   A. 

-  ,1     .'{Ol 

r     ■  >A    V.    Hallcntiiio    (Idaho), 

69    PftP.    995 1"! 

Swett  V.  CuttB,  50  N.  II.  439,  9 

Atn.  R<'p.  276 425 

s..  ,ft  v.  (Hainan,   102  Iowa  206. 

71  N,  W.  2.13.  37  1,.  H.  A.  462, 

63  Am.  St.  Rep.  443 443 

Swift    V,    People   ex    rol.    I'VrriH 
•  Wheel    Co.,    162    111.    534.    44 

N.  K.  r.2«,  33  L.  R.  A.  470.  .  . 
212,645,652 

Hwlirnrt  V.  People,  154  111.  284, 

40  N.  K.  432 195,730 

Tnromn  v.  Krerh,  15  Wnwh.  296. 
46  Vnr.  LT.r,.  3t  L.  R.   A.  68..    7:15 

Talbot  v.  Illacklcgc,  22  la,  D72.   444 


534 


576 

507 


Tanner  v.  Albion,  5  Hill  121,  40 

Am.  Dec.  337  193 

Tate  V.  Davidson,  143  Mass.  590, 

10  N.  E.  492   226 

Tatman  v.  Strader,  23  111.  493.   194 
Taunton   v.    Taylor,    116    Mass. 

254     531 

Taylor,   Ex   Parte,   87   Cal.    91, 

25  Pac.  154   163 

Taylor,  Re,  48  Md.  28,  30  Am. 

Rep.  451   692 

Taylor  v.  Plymouth,  8  Mete.  462  534 
Taylor  v.  Porter,  4  Hill  140,  40 

Am.  Dec.  274 427 

Taylor  v.  The  State,  49  Ala.  19     99 
Templar     v.     Michigan     State 
Board    of    Examiners,    90    N. 

W.   1058    706 

Ten  Hour  Law  for  Street  Rail- 
way  Corporations   (R.   I.),   54 

Atl.   602 316,   556,  683 

Tenney,  Chairman,  etc.,  v.  Lenz, 

16  Wis.  566 39.  434 

Tcrre  Haute  v.  Kersey  (Ind.), 

64   N.   E.   469 168 

Tcrrett  v.  Taylor,  9  Cranch.  43. 

460,  594 

Territory   v.   Ah   Lim,   1   Wash. 

1.56,  9  L.  R.  A.  395 455 

Texas  Central  R.  Co.  v.  Childress, 

64  Tex.  346   629 

Texas    &    Pacific    Coal    Co.    v. 
Lawson,  89  Tex.  394,  32  S.  W. 

871,  34  S.  W.  919 354 

Thorington  v.  Smith,  8  Wall.  1.    560 
Thorpe  v.  Rutland  and  Burling- 
ton Railroad  Company,  27  Vt. 

140,  62   Am.  Dec.   625 

24,  362,  565,  629 

Thrift  V.  Elizabeth  City.  122  N. 
C.  31,  30  S.  E.  349,  44  L.  H.  A. 

.1127    574,681 

Thiirh.T  V.  Martin,  2  Cray  304, 

61   Am.  Dec.   lOH   425 

Thurlow   V.    Massarhusetts    (Li- 

cruHo  Cnsos),  5  Howard  504.. 2,  76 
Tlinrston    v.    Whitney,    2    Cuah. 
104   46J 


TABLE  OF  CASES  CITED. 


Ixxxvii 


[references  are  to  sections.] 


Tide  Water  Co.  v.  Costar,  3  C. 

E.  Green  (N.  J.)  54 441 

Tiernau  v.  Einker,  102  U.  S. 

123 76,  82,  232 

Tierney  v.  New  York  Central  & 

Hudson  Eiver  R.  E.  Co.,  76  N. 

Y.  305   387 

Tilley  v.  St.  Louis  and  S.  F.  Ey. 

Co.,  49  Ark.  535,  6  S.  W.  8  . .  .  628 
Timm  v.  Harrison,  109  HI.  593.  38 
Todd  V.  Clapp,  118  Mass.  495. .  702 
Toledo,    A.    A.    &    N.    M.    Ey. 

Co.    V.    Pennsylvania    Co.,    54 

Fed.    730    450,  452 

Toledo,    Wabash    and    Western 

Eailway    Company   v.    City    of 

Jacksonville,  67  111.  37,  16  Am. 

Eep.  611 63,  p.  59,  145,  150 

Toll  Bridge  Co.  v.  Flowers,  110 

N.  C.  381,  14  S.  E.  918 668 

Tomlinson  v.  City  of  Indianap- 
olis, 144  Ind.  142,  43  N.  E.  9, 

36  L.  E.  A.  413 38,  168 

Tomlinson  v,   Jessup,    15   Wall. 

454  363,  568 

Topeka  v.  Zufall,  40  Kansas  47, 

19  Pac.  359,  1  L.  E.  A.  387 32 

Tourne  v.  Lee,  8  Mart.  (N.  S.) 

548,  20  Am.  Dec.  260 170 

Town  of,   see  name  of  town. 
Townsend  v.  State,  147  Ind.  624, 

47  X.  E.  19,  37  L.  E.  A.  294, 

62  Am.  St.  Eep.  477 422 

Trade  Mark  Cases,  100  U.  S.  82  664 
Traer  v.  State  Board  of  Medical 

Examiners,  106  la.  559,  76  N. 

W.   833    546 

Trageser  v.  Gray,  73  Md.  250,  20 

Atl.  905,  9  L.  E.  A.  780,  25  Am. 

St.  Eep.  587    706 

Train  et  als.  v.  Boston  Disinfect- 
ing Company,  144  Mass.  523,  11 
N.  E.  929,  59  Am.  Eep.  113.  .31,  521 

Transportation  Co.  v,  Chicago, 
99  U.  S.  635   508 

Trcbilcock  v.  Wilson,  12  Wall. 
687    559 


Tredway  v.  Sioux  City,  etc.,  E. 

Co.,  43  la.  527    637 

Trent     v.     Cartersville    Bridge 

Co.,   11   Leigh  544 668 

Trenton    Potteries    Co.    v.    Oli- 

phant  et  al.,  58  N.  J.  Eq.  507, 

43  Atl.  723,  46  L.  E.  A.  255,  78 

Am.  St.  Eep.  612   349 

Trenton    Water    Power    Co.    v. 

Raff,  36  N.  J.  L.  335 410 

Trout  V.  Marvin,  62  Oh.  St.  132, 

56  N.  E.  655 190,  626 

Truesdale  v.  Peoria  Grape  Sugar 

Co.,  101  111.  561 162 

Trustees  of  Columbia  College  v. 

Thaeher,  87  N.  Y.  311,  41  Am. 

Eep.  365   590 

Trustees  of  Dartmouth  College 

V.  Woodward,  4  Wheat.  518.. 

24,   361,   363,   561,  597 

Trustees   of   Town   of   Paris  v. 

Berry,  25  Ky.  483 620 

Tucker    v.    Ferguson,    22    Wall. 

527   568 

Tugman  v.  Chicago,  78  111.  405.  687 
Tullis  v.  Lake  Erie  and  Western 

E.  Co.,  175  U.  S.  348 715 

Turner  v.   Maryland,  107  U.  S. 

38    75,   276,  277 

Turner  v.  Nye,  154  Mass.  579, 

28  N.   E.   1048 413 

Turpin  v.  Locket,  6  Call.  113.. 

460,  594 

Tuthill,  Ee,  163  N.  Y.  133,  57 

N.  E.  303,  49  L.  E.  A.  781..427,  442 
Tyler  v.  Beacher,  44  Vt.  648,  8 

Am.  Eep.  398 412 

Underwood  v.  Green,  42  N.  Y. 

140   522 

Ungericht  v.  State,  119  Ind.  379, 

21  N.  E.  1082,  12  Am.  St.  Eep. 

419  735 

Union    Central    Life    Insurance 

Co.  V.  Chowning,  86  Tex.  654, 

26  S.  W.  982,  24  L.  E.  A.  504. 

637,  714,  727 

Union  Pacific  E.  Co.  v.  Porter, 

38  Neb.  226,  56  N.  W.  808  ...  633 


Ixxxviii 


TABLE  OF  CASES  CITED. 
[references  are  to  sections.] 


Union   Strawboanl   Co.   v.   Bon- 
fieUl,    193    111.    420,   61    N.    E. 
1038,  86  Am.  St.  Rep.  346.  ..  .   348 
United  States  v.  Bellingham  Bay 

Boom  Co.,  176  U.  S.  211 407 

United    States    v.    Bennett,    16 

Blatch.   338    237 

United  States  v.  Buntin,  10  Fed. 

730   698 

United    States    v.    Cassidy,    67 

Fed.  698   341,  356 

United  States  v.  Clarke,  38  Fed. 

Kep.    732    237 

United    States    v.    Chesman,    19 

Fed.   497    237,  23S 

United  States  v.  Cruikshank,  92 

U.  S.  542    480,611 

Cnited     States    v.    Dewitt,     9 

Wall.  41    i^-'^ 

Initod  States  v.  E.  C.  Knight 
Company,   156   U.   S.    1 

69,    79,    341,  342 

United     States     v.     Forty-three 
Gallons  of  Whiskey,  93  U.  S. 

188   fi7 

United     States     v.     Gettysburg 

Electric  Railway  Company,  160 

U.  S.  668 13,  183 

United    States   v.    Greenhut,    51 

Fed.  205,  213   346,  353 

T'nifod    States    v.    Harmon,    45 

F.'d.     HI     237 

United  States  v.  Harris,  106  U. 

H.   629   693 

United    States     v.    Ilolliday.     3 

Wall.   407    67 

United      States     v.      Kirhy,      7 

Wall.  482    15S 

United    Rtntes    v.    Joint    Traffic 

Attwiriiition.  171   U.  S.  .505. .355,  5ii2 
United  8tnte«  v.  Jones,   109  U. 

8.  Ria   506 

United    Stfttcs    v.    Tjamkin,    73 

F.-d.    ■\:>'J    237.  453 

Unitfxl  Btntwi  v.  Lynah,  188  U. 

R.  Urt    40!» 

Unltwl  8tntm  v.  Martin,  50  Fed. 

yi8     207,  453 


United  States  v.  Moline,  82  Fed. 

592     40.3,  406 

United   States   v.    Northern   Se- 
curities Co.,  120  Fed.  721 351 

United  States  v.  Pacific  Railroad 

Co.  120  U.  S.  227   530 

United  States  v.  Perkins,  163  U. 

S.  625 22,  269,307 

United  States  v.  Realty  Co.,  103 

U.  S.  427   428 

United     States    v.     Russell,     13 

Wall.  623    536 

United  States  v.  Smith,  45  Fed. 

470     237 

United  States  v.  Stowell,  133  U. 

S.   1    627 

United  States  v.  Trans-Missouri 
Freight  Association,  160  U.  S. 

290   354,  355 

United  States  v.  Waddell,  112  U. 

S.  76   693 

United  States  v.  Wightman,  29 

Fed.    630    230 

United  States  v.  Wilson,  46  Fed. 

748     108 

Unitod    States    v.    Wong    Kim 

Ark,  109  U.  S.  649 091 

United  States  v.  Workingmen's 
Amalgamated  Council,  54  Fed. 

994   341,  356 

United  States  v.  Zucker,  101  U. 

S.  475    526 

United    States    ex    rcl.    Hoop    v. 

Douglass,  19  D.  C.  99 209,  654 

University   v.   Pco]>lo,   99   IT.   S. 

309   568 

Updegrapli  v.  Conimoiiwcnltli,  11 

S.  &  R.  394 405 

Vance  v.  Vandorcook  Co.,  170  U. 

S.  438    233 

Vunderbilt    v.    Adams,    7    Cowcn 

349     175 

Vanderlmrsl  v.  Tixdckc,  113 
Cal.    117,    15    I'ac.    200,    35    L. 

U.    A.    207 158 

Vanderpool  v.  Gorni.-in,  140  N. 
V.  503,  35  N.  E.  932.  24  L.  R. 
A.  048.  37  Am.  Ht.  Rbp.  OlJl. .   716 


TABLE  OF  CASES  CITED. 


Ixxxix 


[references  are  to  sections.] 


Van  Deusen  v.  Newcomer,  40 
Mich.  90   252 

Vandine,  Ee,  6  Pick.  187,  17 
Am.  Dec.  351 168,  641 

Van  Horn  v.  People,  46  Mich. 
183,  9  N.  W.  246,  41  Am.  Rep. 
159     434 

Van  Wormer  v.  The  Mayor,  etc., 
of  Albany,  15  Wend.  262 521 

Veazie  Bank  v.  Fenno,  8  Wall. 
533    58,  p.    53 

Vegelahn  v.  Guntner,  167  Mass. 
92,  44  N.  E.  1077,  35  L.  E.  A. 
722,  57  Am.  St.  Eep.  443 333 

Vermont  Loan  and  Trust  Asso- 
ciation V.  Whithed,  2  N.  D.  82, 
49  N.  W.  318 304 

Village  of  Des  Plaines  v.  Poyer, 
123  111.  348,  14  N.  E.  677,  5 
Am.  St.  Eep.  524 250 

Villavaso  v.  Barthet,  39  La. 
Ann.  247,  1  Southern  599 565 

Virginia,  Ex  parte,  100  U.  S. 
339   693 

Vise  V.  Hamilton  Co.,  19  111.  78.   613 

Vogel  V.  Pekoe,  157  111.  339,  42 

N.  E.  386,  30  L.  E.  A.  491 

314,  321,  502,  735,  736 

Voight  V.  Wright,  141  U.  S.  62. 
77,   82,   138,  277 

W.  W,  Cargill  Co.  v.  Minne- 
sota,  180  U.   S.  452 297,  493 

Wabash,  St.  Louis  and  Pacific 
Eailway  Company  v.  Illinois, 
118  U.  S.  557 73,    79 

Wadleigh  v.  Oilman,  12  Me.  403, 
28  Am.  Dec.  188 141,  538,  685 

Wadsworth  v.  Union  Pacific  E. 
Co.,  18  Col.  600,  33  Pac.  515, 
23  L.  E.  A.  812,  36  Am.  St. 
Eep.   309    629,  637 

Wahll,   Ee,   42   Fed.    822 236 

Walker  v.  Cronin,  107  Mass.  555  333 

Walker  et  als.  v.  The  City  of 
New  Orleans,  31  La.  Ann.  828..     41 

Wall,  Ex  parte,  48  Cal.  279,  17 
An).  Rep,  425  .217 


346 


424 


Walla    Walla    v.    Walla    Walla 

Water  Co.,  172  U.  S.  1 6''S 

Wallace  v.  Georgia,  Carolina  & 

Northern   E.   Co.,   94   Ga.   732, 

22  S.  E.  579 327 

Wallace    v.    Eichmond,    94    Va. 

204,  26  S.  E.  586,  36  L.  E.  A. 

554  537 

Wallace  v.  Western  N.  C.  E.  Co., 

104  N.  C.  442,  10  S.  E.  552.  .  .   628 
Walling  V.  Michigan,  116  U.  S. 

446 76,  82,  232 

Wallis  V.  Day,  2  M.  &  W.  273.  .   449 
Walsh  V.   Dwight,   58   N.   Y.   S. 

91,  40  App.   Div.   513 

Walters   v.   Pfeil,   Moo.   &   Mai. 

362   

Ward  V.   Flood,   48   Cal.   36,   17 

Am.  Eep.   405    698 

Ward  V.  State,  17  Oh.  St.  32 192 

Warren    v.    Tanner,    21    Ky.    L. 

Eep.    1678,   56   S.    W.    167,   49 

L.  E.  A.  248   

Washington  Bridge  Co.  v.  State, 

18  Conn.  53   

Washington  lee  Co.  v.  Shortall, 

101  111.  46,  40  Am.  Eep.  196.  .  .   418 

Washington,  etc.,  Toll  Bridge 
Co.  V.  Commissioners  of  Beau- 
fort, 81  N.  C.  491   682 

Waterhouse  v.  Comer,  55  Fed. 
149   341 

Waters  v.  People,  23  Colo.  33,  46 
Pac.  112,  33  L.  R.  A.  836,  58 
Am.  St.  Rep.  215   249 

Waters  v.  Wolf,  162  Pa.  St. 
153,  29  Atl.  646,  42  Am.  St. 
Rep.  815   626 

Waters-Pierce  Oil  Co.  v.  State, 

19  Tex.  Civ.  App.  1,  44  S.  W. 
936   356,  734 

Watuppa  Reservoir  Co.  v.  Fall 

River,  147  Mass.  548,  18  N.  E. 

465,  1  L.  R.  A.  466 408.  576 

Watuppa  Reservoir  Co.  v.  Fall 

River,  154  Mass.  305,  28  N.  E. 

2'57,  13  L.  R.  A.  255 408,  576 


668 


576 


xc 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 


Watuppa  Reservoir  Companj-  v. 

Mackenzie,  132  Mass.  71 34 

Way,   In   re,   41   Mich.    299,    1 

N.  W.  1021  99 

Waye   v.   Thompson,  L.   E.    15 

Q.  B.  D.  342   521 

Weaver  v.  People,  33  Mich.  296..  108 

Webb  V.  Bair.l.  6  Ind.  13 613 

Webber  v.  Harding,  55  Ind.  408  244 
Webster    v.    Cambridge    Female 

Seminary,  78  Md.  193,  28  Atl. 

25   362,  599 

Webster  v.  Sughrow,  69  N.   H. 

380,  45  Atl.  139,  48  L.  R.  A. 

100     369 

Weise   v.   Smith,   3   Ore.   445,   8 

Am.  Rep.  621    409 

Welch  V.  Cook,  97  U.  S.  541.  . . .  568 
Welch    V.    Phelps    and    Bigelow 

Wind  Mill  Co.,  89  Tex.  653.  .  .  346 
W.-I.li     V.     Stowell,     2     Dougl. 

(Mich.)  332 245,  250,525 

Weller  v.  Snovcr,  42  N.  J.  L.  341  527 
Wellcr    V.    The    State,    53    Ohio 

State  77,  40  N.  E.  1001 32 

Wellington,  etc.,  R.  Co.  v.  King, 

91  U.  S.  3 560 

Wells,  Ex  parte.  18  How.  307.  .  104 
Welsh   V.  State,   126   Ind.   71,   9 

L.  R.  A.  664 710 

Woinh  V.  Wil.son,  101  N.  Y.  254, 

4  N.  K.  633,  .'54  Am.  Rep.  698.  .  172 
Welton  V.  State  of  Missouri,  91 

U.  8.  275 74,  82,  294 

Wonhiun    v.    State    (Xeb.).    91 

N.   W.  421,  5H   L.   U.   A.   825.. 

:n2,   31-1,   317,  735 

Went  V.  furter,  129  111.  249,  21 

N.  E.  782 192 

Went      V.      Kmnnuel,      198     Pa. 

IHO.  47   Atl.  965,  53  L.   Iv.   .A. 


\\ .  I  Chicnfin  MnHonir  Abbo- 
elation  v.  Cnhn,  192  111.  210, 
61  N.  E.  431),  55  L.  R.  A.  2.35.. 

Wcjit  River  nridRO  Co,  v.  Dix,  6 

n  .w.  .'-,07 

Wr  1    WiiM'onmn   R.   Co.   v.   8u- 


I  )!• 


16i 


587 


pervisors  of  Trempealeau 
County,  93  U.  S.  595 568 

Westchester,  etc.,  R.  Co.  v.  Miles, 
55  Pa.  St.  209,  93  Am.  Dec.  744  695 

Westerfield,  Ex  parte,  55  Cal. 
550,  36  Am.  Rep.  47 317,  735 

Western  Granite  Co.  v.  Knicker- 
bocker, 103  Cal.  Ill,  37  Pac. 
192     426 

Western  Union  Telegraph  Co.  v. 
Call  Publishing  Co.,  44  Neb. 
326,  62  N.  W.  506,  27  L.  E.  A, 
622,  48  Am.  St.  Rep.  729 389 

Western  Union  Telegraph  Com- 
pany V.  Call  Publishing  Com- 
pany, 181  U.  S.  92 73,    79 

Western  Union  Telegraph  Co.  v. 
Pensacola,  etc.,  Co.,  96  U.  S. 
1    79,  719 

Western  Union  Telegraph  Co.  v. 
Texas,  105  U.  S.  460 717 

Westervelt,  executor,  etc.  v. 
Gregg,  12  N.  Y.  202,  62  Am. 
Dec.   160   20 

Westmoreland  &  C.  Natural  Gas 
Co.  V.  De  Witt,  130  Pa.  St.  235, 
18  Atl.  724,  5  L.  R.  A.  731 422 

Weston  V.  Barnicoat,  175  Mass. 
4.54,  56  N.  E.  619,  49  L.  R.  A. 
612   301 

Weston  V.  Sampson,  8  Cush.  347, 
54   Am.   Dec.   764    405 

Wetmore  v.  State,  55  Ala.  198.  .    192 

When  ton  v.  Peters,  8.  Pet.  590.  . .   603 

Wliceling  and  R.  Bridge  Co.  v. 
Wlieoling  Bridge  Co.,  138  U.  S. 
287   075 

Wliecler  v.  Northern  Colorado 
Irrigating  Co.,  10  Col.  582,  17 
Par.  487,  3  Am.  St.  Rep.  603.  .    416 

White  V.  City  Council  of  Charles- 
ton, 2  Hill   (S.  C.)  571    534 

While  V.  Godfrey,  97  Mass.  472  163 

White  V.  Kent,  11  Oliio  State 
550   1 73 

White  Deer  f'reek  Improvement, 
Co.  V.  SaHsamau,  07  Pa.  St.  415  409 


TABLE  OF  CASES  CITED. 


XCl 


[references  are  to  sections.] 


Wlutebreast  Fuel  Co.  v.  People, 

1  75  III.  51,  51  N.  E.  853 394 

Vvhittenton    Mills    v.    Upton    et 

ills.,   10  Gray    (Mass.)    582,   71 

Am.  Dec.  681   350 

Whit  well,  Ex  parte,  98  Cal.  73, 

32  Pac.  870,  19  L.  E.  A.  727, 

35  Am.  St.  Rep.  152 256 

Wight  V.  United  States,  167  U. 

8.    512    392 

Wiggins  V.  The  City  of  Chicago, 

68  111.  372 40 

Wilder  v.  Chicago  and  W.  M.  R. 

Co.,  70  Mich.  382,  38  N.  W.  289  727 
Wilkins  v.  Jewett,  139  Mass.  29, 

29  N.  E.  214   443 

Wilkinson  v.  Board  of  Chil- 
dren 's     Guardians,     158     Ind. 

1,  62  N.  E.  481 262 

Wilkinson  v.  Rahrer,   140  U.  S. 

545   232 

Wilkinson    v.    Stitt,    175    Mass. 

581,   56  N.   E.   830 192 

Wilkinson  v.  Tousley,  16  Minn. 

263   194 

Williams  v.  Citizens'  Enterprise 

Co.,  25  Ind.  App.  351,  57  N.  E. 

581   360 

Williams   v.    Fears,    179    U.    S. 

270 74,  79,  328,  489 

Williams  v.  Fears,  110  Ga.  584, 

35  S.  E.  699,  50  L.  R.  A.  685.  .  .  489 
Williams  v.  Mayor,  etc.,  of  New 

York,  105  N.  Y.  419,  11  N.  E. 

829   406,  576 

Williams  v.  Nelson,  23  Pick.  141, 

34  Am.  Dec.  45 412 

Williams  v.  Parker,  188  U.  S. 
491   180 

Williams  v.  People,  121  111.  84, 
11  N.  E.  881   133,  684 

Williams  v.  State,  44  Ala.  41 . . .     87 

Williams  v,  Wingo,  177  U.  S. 
601   675 

Williamson    v.    Price,   4   Mart. 

(N.    S.)    399 625 

Willia'msptrtt  pas^nger  E.  Co. 


V.    Williamsport,    120   Pa.    St. 

1,   13   Atl.   496 576 

Willow  River  Club  v.  Wade,  100 

Wis.  86,  76  N.  W.  273,  42  L.  R. 

A.  305 404,  417,  418 

Wilmington  &  Weldon  R.  Co.  v. 

King,  91   U.  S.  3 560 

Wilson     et     als.     v.     Blackbird 

Creek  Marsh  Company,  2  Pet. 

245   72 

Wilson  V.  Board  of  Trustees  of 

Sanitary  District  of  Chicago  et 

al.,  133  111.  443,  27  N.  E.  203.  22 
Wilson   V.   Eureka  City,   173  U. 

S.    32    168,  644,  655 

Wilson  V.  Iseminger,  185  U.  S. 

55   370 

Wilson  V.   United   Traction  Co., 

72    App.    Div.    233,    76   N.    Y. 

Suppl.    203    613 

Wilson,    Town    of    v.    Weston, 

Town   of,  48  Conn.  325 434 

Winchester,    etc.,    L.    Turnpike 

Road   Co.   V.    Croxton,    98   Ky. 

739,  34  S.  W.  518,  33  L.  R.  A. 

177  362,  363,570 

Windisch-Muhlhauser      Brewing 

Co.  V.  Bacom,  21  Ky.  L.  Rep. 

928,  53  S.  W.  520 301 

Winget  V.  Quincy  B.  &  H.  As- 
sociation, 128  111.  67,  21  N.  E. 

12     304 

Winn  V.  State,  43  Ark.  151 221 

Winona   &   St.    Paul   R.    Co.    v. 

Blake,  94  U.  S.  180 379 

Winslow  V.  Gilford,  6  Cush.  327.  5L8 

Wisconsin,  Minnesota  and  Pa- 
cific Railroad  v.  .Tacobson,  179 
U.  S.  287 63,  p.  59,  397 

Witham  v.  Osborn,  4  Ore.  318, 
18  Am.  Rep.  287 427 

Woh  Lee,  Re,  26  Fed.  471 643 

Wong  Wing  v.  United  States, 
163  U.  S.  228   704 

Wood  V.  Whitehead  Brothers 
Co.,  165  N.  Y.  545,  59  N.  E. 
357  348 


XCll 


TABLE  OF  CASES  CITED. 


[references  are  to  sections.] 
Wooden  v.  Shotwell,  23  N.  J.  L. 


465   197 

Woodruff  V.  Catlin,  54  Conn.  277, 

6  Atl.  849   548,  631 

Woodruff  V.  Kellyville  Coal  Co., 

182  111.  480,  55  N.  E.  550 638 

Woodruff  V.  Mississippi,  162  U. 

S.  291    309 

Woodruff    V.    Parham,    8    Wall. 

123   74,  81,  295 

Woodruff  V.  Woodruff,  44  N.  J. 

Eq.  349,  16  Atl.  4,  1  L.  R.  A. 

880   590 

Woodson  V.  State,  69  Ark.  521, 

65  S.  W.  465 394 

World  V.  State  of  Maryland,  50 

Md.  49 96 

Wortliington    Company,    Matter 

of   the,   62    X.    Y.   S.   R.    115, 

30    N.    Y.    Suppl.    361,    24    L. 

K.    A.    110 237 

Wreford  v.  The  People,  14  Mich. 

41    33,  141 

Wripht  V.  Cudahy,  168  111.  86,  48 

X.  E.  39   200 

Wright  V.  Xagle,  101  U.  S.  791  .  678 
Wright  V.  Noell,  16  Kan.  601.  .  .  701 
Wriglit   V.   People,   101   111.  126. 

2"2  2"3 
Wright   V.   Tlio   State  of  Mary- 
land, 88  Md.  436,  41    All.  7!>r). 

62,  147.  283 

WurtH   V.    Iloagland.   114   U.   S. 

606     441 

Wynohamrr  v.  People,  13  N.  Y. 
378   214,  539 


Yamataya  v.  Fisher,  189  U.  S. 

86  704 

Yarbrough,  Ex  parte,  110  U,  S. 

651    693 

Yates  V.  Brown,  8  Pick.  23 625 

Yates  V.  Milwaukee,  12  Wis.  673  274 
Y^'ates    V.    Milwaukee,    10    Wall. 

497     406,576 

Yeager,  Ex  parte,  11  Gratt.  655 

209,  654 

Yeomans  v.   Contra  Costa,   etc., 

Co.,  44  Cal.   71    628 

Yick  Wo  V.  Hopkins,  118  U.  S. 

356    63,  134 

610,  643,  655,  690,  700,  705,  706 
^oung        V.        Commonwealth 

(Va.),  45  S.  E.  327 60,  293 

Young  V.  Harrison,  6  Ga.  130.  668 
Youngblood       v.       Birmingham 

Trust  and  Savings  Co.,  95  Ala. 

521,   12   So.   579,   20   L.   R.   A. 

58,  36  Am.  St.  Rep.  245    733 

Youngblood  ct  als.  v.  Sexton,  32 

Mich.  406,  20  Am.  Rep.  654..      37 

Younger  v.  Judah,  111  Mo.  303, 
19  S.  W.  1109,  16  L.  R.  A. 
558,  33  Am.  St.  Rep.  527 695 

Zabriskio  v.  Hackonsack  &c. 
R.  Co.,  18  N.  J.  Eq.  17S,  90 
Am.    Dec.    617 .■^O."),   :!!I7 

Zanone  v.  Mound  City,  103  111. 
552     209,  0.")4 

Zeiglcr  v.  South  and  North  Ala- 
bama Railroad  Company,  58 
Ala.     594     20,629 


FlRSr  PART. 

NATURE  AND   GENERAL   SCOPE  OF  THE 

POLICE   POWER, 


CHAin-ER 

I.     GOVERXMEXTAL  POWEES  AXD  PTTBLTC  POLICY. 

IT.     METHODS  OF   THE   POLICE  POWER. 

III.     THE     FEDERAL     GOVERXMENT     AND     THE     POLK  E 
POWER. 


THE  POLICE  POWER 


FIKST  PAllT. 


NATURE  AND  GENERAL  SCOPE  OF  THE  POLICE 

POWER. 


CHAPTER  I. 

GOVERNMENTAL  POWERS  AND  PUBLIC  POLICY. 

§  1.  Division  of  governmental  powers.— Governmental  pow- 
ers are  commonly  distinguished  aeeordiug  to  the  departments 
of  government  by  which  they  are  exercised,  as  legislative,  ex- 
ecutive, and  judicial.  This  division  is  closely  connected  with 
the  development  of  modern  constitutional  government,  and  has 
been  distinctly  recognised  and  made  part  of  the  fundamental 
law  in  nearly  all  American  constitutions.  It  is  a  division  of  an 
administrative  character  based  on  principles  of  organisation, 
and  has  no  logical  or  legal  relation  to  different  subject-matters 
or  objects  of  government.  The  three  departments  set  a  cheek 
upon  one  another,  and  thus  upon  the  government  as  a  whole, 
and  the  separation  of  powers  has  therefore  always  been  looked 
upon  as  a  valuable  safeguard  of  free  institutions ;  but  the  divi- 
sion does  not  necessarily  limit  the  substance  of  governmental 
powers  and  does  not  indicate  the  nature  of  such  limitations  as 
it  may  eventually  bring  about. 

We  recognise  on  the  other  hand  that  government  consists  of 
a  number  of  powers  differing  from  each  other  in  object  and 
content.  There  has  never  been  an  exhaustive  classification  of 
these  powers,  and  only  those  have  distinctive  names  which 
have  been  conspicuously  the  subject  of  constitutional  conten- 
tion or  discussion.  Thus  there  is  no  brief  or  comprehensive 
word  to  designate  the  power  to  make  laws  for  the  regulation 
of  private  rights,  the  power  to  define  and  punish  crimes,  or 
the  power  to  enact  codes  of  procedure ;  but  the  military  power, 
1  1 


2  GOVERXMEXTAL  POWERS.  §  2 

the  taxing  power,  the  police  power,  the  power  of  eminent  do- 
main, have  become  familiar  terms  in  our  constitutional  law. 
Of  these,  the  police  power  is  the  most  comprehensive,  and 
therefore  necessarily  the  vaguest. 

^2.  The  term  ■police."— -The  term  police  has  never  been 
clearly  circumscribed.  It  means  at  the  same  time  a  power  and 
function  of  government,  a  system  of  rules,  and  an  adminis- 
trative organisation  and  force.  Blackstone  couples  ])nblic 
police  and  economy  which  he  defines  as  "the  due  regulation 
and  domestic  order  of  the  kingdom,  whereby  the  individuals 
<»f  the  state,  like  the  members  of  a  well  governed  family,  are 
bound  to  conform  their  general  behavior  to  the  rules  of  pro- 
priety, good  neighborhood,  and  good  uuvnners,  and  to  be  decent, 
industrious  anil  inoffensive  in  their  respective  stations."*  He 
treats  under  this  head  of  clandestine  marriages,  of  bigamy,  of 
waiuleriiig  soldiers,  of  gypsies,  of  common  nuisances  (includ- 
ing disorderly  houses,  inns,  plays  and  shows,  lotteries,  fire- 
works, eavesdroppers,  connnon  scolds),  idleness,  luxury,  gam- 
ing, and  the  game  laws.  Offenses  against  public  trade  and 
against  j)ublic  health  are  treated  separately  from  police.  The 
infliieiu'e  of  Hlackstone's  arrangement  is  noticeable  in  the 
legislation  of  those  states  which  have  nuide  police  one  of  the 
j)rincipal  divisions  of  their  slalujory  revisions.-  An  arrange- 
ment of  this  kind  is  sinii)ly  ;i  mallei-  of  convenience  and  has 
no  legal  significance.  If  would  be  impossible  to  discover  any 
y)rinciple  upon  wliieli  tli«se  partieidar  mattiM's  are  brought  to- 
gether and  separated  from  others.  In  the  decisions  of  the 
rourts  we  find  the  term  police  coupled  with  internal  comnuu'ce 
jind  domestic  trade;  health  ami  safety  measures  are  commonly 
aseribeil  to  it;  hut  it  is  also  made  to  iueludc  the  esfahlishmeiil 
of  eonrts  of  jusliee  and  tlie  punishment  of  offenses,  and  the 
general  feudeney  is  tu  identify  it  with  the  whole  (d"  internal 
governnu'iit  and  sovereignty,  and  to  regard  it  as  an  undeliued 
masH  of  legislation.'' 

«  Itliirkiitonf  IV.   lrt*J-17i}.  Oliid,     inioilc      IhImiwI,     Wahliinfjton, 

» The  torm  p<»nrp  n|)pcnrH  firHl   uh  ami  WiHcoiiBin. 

a  flU'iiiton  of  |PKi"lnti<)n   in   Iho  He  ■i(;i))l>(mH  v.  Ondcn,  ;»  Wli.  1,  204* 

\        r  N<Mv  Y»irk  in   IXL'ii,  I.i.cnH.-  (•.•ihch,  r>  How.  M4,  r,s:\;  Now 

"l"I'l*"l  it   in   ">«'  •*'•  Vork  v.   Miln,   II    r(-t.   lO'J,  l.ii);   I'us- 

viRinti  of  1S36,  it  in  now  nlmi  fdiimi  h'-iikct  Cuhch,  7  How.  283,  424. 
in  Drlnwjiro,  lown,  .Ww  HiimpHliire, 


H 


DEFINJTIOX  OF  POLICE  POWER. 


^  3.  The  term  "police  power."— It  has  been  inferred  from 
this  vajjueness  of  the  term  police,  that  the  idea  of  the  police 
power  must  be  equally  undefined,  and  a  recent  author  has  jrone 
so  far  as  to  deny  its  existence,  treating  it  as  a  fiction,  and  hold- 
iim  it  equivalent  to  indefinite  supremacy.^  The  inference  is, 
however,  unwarranted.  As  soon  as  the  idea  of  the  police  be- 
came the  centre  and  foundation  of  a  governmental  power,  the 
exercise  of  which  had  to  justify  itself  in  the  face  of  constitu- 
tional limitations,  the  courts  were  bound  to  use  the  term  with 
greater  care,  and  to  attempt  to  define  it.  From  the  mass  of  de- 
cisions, in  which  the  nature  of  the  power  has  been  discussed, 
and  its  application  either  conceded  or  denied,  it  is  possible  to 
evolve  at  least  two  main  attributes  or  characteristics  which  dif- 
ferentiate the  police  power :  it  aims  directly  to  secure  and  pro- 
mote the  public  welfare,  and  it  does  so  by  restraint  and  compul- 
sion. It  will  be  necessary  to  offer  a  few  general  observations 
upon  these  two  points,  bearing  in  mind  that  it  is  not  by  general 
statements,  but  only  by  a  detailed  examination  of  statutes  and 
decisions  that  the  power  can  be  fully  understood  and  defined. 
Such  an  examination  will  shoAv  what  has  been  done  and  what 
has  been  approved  by  experience,  what  has  been  attempted  and 
has  failed,  what  has  been  surrendered,  and  what  is  aimed  at 
and  in  process  of  being  accomplished.  It  will  reveal  the  police 
power  not  as  a  fixed  quantity,  but  as  the  expression  of  social, 
economic  and  political  conditions.  As  long  as  these  conditions 
vary,  the  police  power  must  continue  to  be  elastic,  i.  e.,  capa- 
ble of  development. 

A.     THE  POLICE  POWER  AS  A   MEANS    OF    FURTHERING    THE 
PUBLIC   WELFARE.      §4-21. 

§  4.  In  order  to  understand  the  police  power  with 
reference  to  its  purpose,  it  is  necessary  to  distinguish  the  great 
objects  of  government:  the  maintenance  of  national  existence; 
the  maintenance  of  right,  or  justice :  and  the  public  welfare. 

§  5.  Maintenance  of  national  existence.— The  maintenance 
of  national  existence,  including  the  relation  to  other  states  and 
the  expansion  of  national  power,  involves  the  creation  of  an 
adequate  governmental  organisation,  the  management  of  for- 

*  W.  G.  Hastings,  Development  of     state.     Proeeedings  of  the  American 
Law  as  illustrated  by  the  decisions     Philosophical  Society,   Sept.   1900. 
relating  to  the  Police  Povrer  of  the 


4  GOVEKXMHNTAL  POWERS.  §6 

eign  relations  through  diplomatic  intercourse,  treaties,  and 
legislation  affecting  foreign  interests,  the  conduct  of  war,  and 
the  protection  of  the  state  against  internal  revolt  and  insur- 
rection. The  organising  power  is  largely  exercised  hy  the  con- 
stitution directly  and  otherwise  forms  part  of  the  general  legis- 
lative power,  while  appointment  and  removal  of  officers  are 
regarded  generally  as  executive  functions.  The  international 
power  is  under  the  federal  constitution  reserved  to  the  national 
government,^  and  is  divided  between  the  legislative  and  ex- 
ecutive departments.  The  conduct  of  war  and  the  suppression 
of  insurrection  call  into  play  the  military  power  of  the  gov- 
ernment, vested  largely  in  the  executive.  In  the  exercise  of  its 
international  and  military  power  the  state  is  freed  from  many 
of  the  restraints  under  which  it  must  conduct  the  peaceful 
govfrnmi'iit  of  its  own  citizens.*^ 

;^  6.  Supply  of  ways  and  means.— Closely  associated  Avith 
the  maiiitmaiice  of  slate  existence  is  the  supply  of  ways  and 
ni<'ans.  In  all  its  functions  the  government  needs  persons, 
funtls,  and  material  equipment.  To  obtain  these,  the  state 
may  under  circumstances  resort  to  the  exaction  of  services,  and 
to  the  taking  <»r  ])roperty  for  compensation,  ^lost  import- 
ant, however,  is  the  sui)ply  of  financial  ways  and  means,  the 
collection  and  expendiliiic  of  revenue,  which  in  every  state 
forms  one  of  the  main  departments  of  the  government.  It 
involves  the  nianagciin'iit  of  pul)lic  property  with  a  view  to 
incoiiM'.  the  j)ower  1o  ineiir  in(h'l)tedness,  the  ajipropriation  of 
funds,  and  alK)ve  all  the  taxing  ])ower,  i.  e.,  the  ])Ower  to  im- 
pose pecuniary  burdens  according  to  some  principle  of  appor- 
tionnieiit   and   for  jtublie   piir|)oses. 

!5  7.  The  maintenance  of  right  and  the  redress  of  wrong. — 
Civil  and  criminal  justice.  The  riiiKhiineiital  canons  of  justice 
result  from  the  eoiniiion  sense  of  riii;ht  and  w  I'ong,  ot"  nioi"al 
r<'Si»onHibility  and  Ihr  laitli  of  ohiigat  ions.  They  ai-e  a|)plie(l 
to,  and  in  their  ini-n  are  alTecled  by.  established  social  and 
econojnic  conditiouN.  and  the  inslilntions  of  government.  I'anii- 

B  Holmm  V,  Jonnimm,   II   I'.-l.  .OK).  c;iHiia!ticH  aiMl   (Iiiiihith   to    wliicli    no 

«  Kwlcriilidf,  l,oH«T  31:      "Ah  fho  poHnihln   limitH  can   bo  aHHipncd,   tlio 

•  liififit     «if     Mnp«Tirit«Mi(linK     <'"'     "«•  power     of     makiiij,'     tli.il      proviHion 

tmnal    <li-fi»nr«'   iirid    of   HWiirin(j    the  on^rlit    to  know  no  oMicr  l.onmlH  (lian 

public  ponrr  n({ninnt   form  or  'iomcs-  tlic  cxi^'cn.  icH  of  tin-  nation  and  tiiu 

tic  violonco  Involvcfi  n   pro%-iHi(in    for  rcHonrceH  of  the  coniinuaify. " 


<  g  JUSTICE  AND  POLICY.  5 

ly,  property,  and  individual  liberty.  The  precise  boundaries  be- 
tween different  rights,  and  the  meaning  and  effect  of  legal 
acts,  are  evolved  from  their  nature  and  purpose  by  reason  jiiid 
logic.  These,  and  the  just  remedies  for  the  violation  of  rights, 
constitute  the  common  law. 

The  normal  operation  of  the  rules  of  justice  consists  in  their 
voluntary  observance  in  the  conflict  of  human  interests.  Their 
application  in  cases  of  doubt  and  controversy,  and  their  en- 
forcement in  case  of  violation,  calls,  however,  for  authority 
and  compulsion,  and  constitutes  one  of  the  chief  functions  of 
the  state.  This  function  is  called  the  administration  of  civil 
and  criminal  justice. 

The  state  may  and  often  does  formulate  and  enact  rules  and 
principles  of  justice  in  the  form  of  statutes,  and  legislative 
activity  may  also  be  called  for  to  remedy  defects  of  the  com- 
mon law.  Positive  rules  and  regulations,  which  could  not  be 
evolved  by  reasoning,  may,  moreover,  be  required  for  the 
better  ascertainment  and  protection  of  rights  and  the  more 
perfect  administration  of  justice,  so  in  the  matter  of  authenti- 
cating or  recording  legal  acts.  The  great  characteristic,  how- 
ever, of  the  principles  of  civil  and  criminal  justice,  is,  that 
they  do  not  appear  as  the  dictates  of  government,  but  as  the 
dictates  of  reason,  and  that  their  growth  and  development  is, 
on  the  whole,  free  from  the  fluctuations  and  conflicts  of  policy 
which  distinguish  governmental  activity  of  the  class  next  to  be 
considered.  , 

§  8.  Public  welfare  or  internal  public  policy.— The  care  of 
the  public  welfare,  or  internal  public  policy,  has  for  its  object 
the  improvement  of  social  and  economic  conditions  affecting 
the  community  at  large  and  collectively,  with  a  view  to  bring- 
ing about  "the  greatest  good  of  the  greatest  number."  The 
organised  activity  of  the  community  is  based  upon  the  fact  or 
belief  that  certain  conditions  essential  or  favorable  to  all  alike 
cannot  be  obtained  at  all  or  without  great  waste  and  difficulty 
by  private  effort,  and  also  that  in  certain  respects  individual 
activity  is  anti-social,  i.  e.,  accomplishes  its  ends  by  sacrificing 
the  interests  of  the  mass  or  of  great  portions  of  the  commu- 
nity. The  state  supplies  the  former  defect  by  collective  com- 
munal action,  and  meets  the  latter  by  restraint  and  compulsi(m 
exercised  over  individuals. 

In  so  far  as  the  prosperity  of  the  community  rests  upon  the 


(J  GOVKRNMKXTAT.  POWEBS.  §8 

I'rt'orts  which  each  individual  makes  for  himself,  and  in  so  far 
as  without  security  of  rights,  free,  fair  and  peaceful  individual 
activity  is  impossible,  justice  is  one  of  the  chief  elements  of 
public  welfare.  Criminal  justice  moreover  directly  protects 
public  or  collective  interests  in  important  respects.  Custom 
and  a  sense  of  propriety  demand  of  the  individual  that  he 
suliordinate  and  adapt  the  exercise  of  his  rip:hts  to  manifest 
social  interests  and  requirements,  and  the  disregard  of  this  ob- 
liijation  appears  as  a  wrong.  Thus  most  of  the  self-evident 
limitations  upon  liberty  and  property  in  the  interest  of  peace, 
safety,  healtli.  carder  and  morals  are  punishable  at  common  law 
as  nuisances.  It  is  witli  reference  to  these  obvious  restraints 
that  llic  luaxiin  has  Incn  i)r()claimed  :  sic  uterc  hfo  uf  iiJicHKHi 
Hon  locdas. 

But  no  community  confines  its  care  of  the  public  welfare  to 
the  enforcement  of  the   principles  of  the  common    l.iw.      'I'hc 
state  j)laces  its  corporate  and  proprietary  resources  at  llu'  dis- 
posal of  the  public  by  the  estalilishment  of  improvements  and 
.services  of  dilferent  kinds;  a  ml  il  <.rcrciscs  its  compiilson/  pow- 
ers for  fJir  prevention   nml  milicipiil imi   nf   irroiuj   h\i    luvroir- 
incj   common    hiir    rlt/lils    throiifjh    conroitional    restraints    and 
positive   regulations   whicli   are   not   co)i fined   io   llir   proJiihition 
of  wro)i(jful  acts.     II  is  IJiis  latter  hind  of  state  control  wtucJi 
constitutes  the  essence  of  the  police  power.     The  ma.rim  of  this 
power  is  that  every  individual   musl  suhniH   Io  such    restraiids 
in  the  crercise  of  his  lihrrhj  or  of  his  rif/hls  of  propirhj  as  maij 
be  rr(juired   h>   ritnon    or   redua    lln    danger  of  tin    (d>use  of 
these  rif/lits  on   tin    part  of  llios<    who  an    unskilful,  cardess  or 
unscrupulous.' 

■  Ifirrmrlv  tin-  "listiiir-tioii  lictwcMMi  Hiining   of    imiini;   .iinl    tliis   is   exer- 

jiiHticc      ( rniiiiilriiaiici'      of      |iriv:iti'  cisnl   hy  ('(iiiity  .'iihI  juHlicp  in  onli- 

ri(;ht)  niul  policy  (|)romotion  of  tlic  imiy  iMuirts.  mihI   liy    Ihc  civili.-ins   is 

piihlii!     wolfaro)      Hourly.    coiiK-idetl  iioiiiinalcil    jus    iniinhnii,    .iiiil    with 

with  fho  (liviHion  of  Jiidicial  or  Icjjis-  \\h  common  law;  ami  these  laws  can 

Intivi-  an<l  ««xcHMitivf'  power.     The  foi-  not   lie  chan^eil  without   parliament  ; 

lowiiif;  in  <|uot«>(l    from  f'h'icf  Huron  .-iikI    allhon^'li    tli.il     tlieir    form    ami 

Klfiiiiny 'h  ur^nnHMit    in    Huti'H*  cuhc  fcnirse    may    hi'    chanjjed    ;inil    inter 

(1(100):        "The     kiuy^'n     power     is  rupteil,     yet      they      can      never      be 

•loiihlf*,   cirdinury   and    uhNolnte,   und  chunked  in  Hnhstam'e.     The  alisohite 

thry    linvc    Hoverul     I.-iwh    and    einlH.  power  of  the  kin^  is  not    thai    which 

Thiif     of    llie    ordimiry    \h    for    the  \h  conviTted   or   executed    to   |irivate 

profit  of  partieiilur  NiihjectH,  for  the  iihc,  to  the  benefit   of  any  particniar 

rxci'ution  of  rivil  juwticv,  the  deter-  perHoii,  but  is  only  that  which  is  up- 


§  10  PRIMAKY  SOCIAL  INTEKKSTS.  7 

§  9.  Scope  of  internal  public  policy  and  welfare.— The  pul)- 
lie  welfare  embraces  a  variety  of  interests,  calling'  in  diircrcnt 
degrees  for  public  care  and  control.  They  may  be  classified 
as  follows:  the  primary  social  interests  of  safety,  order,  and 
morals;  economic  interests;  and  non-material  and  i)olitical  in- 
terests. 

§  10.  The  primary  social  interests :  safety,  order,  and 
morals.— In  order  that  social  life  may  exist,  that  human 
faculties  may  be  developed,  and  the  progress  of  civilisation 
be  made  possible,  a  certain  minimum  of  physical  well-being  is 
necessary.  This  minimum  varies  in  different  periods,  and 
rises  with  advancing  civilisation  until  it  includes  a  certain 
standard  of  comfort.  Closely  connected  with  physical  well- 
being  is  a  recognition  of  elementary  moral  standards,  and  a 
repression  of  at  least  the  outward  manifestations  of  vice  and 
immorality.  In  so  far  as  the  maintenance  of  these  physical  and 
moral  standards  depends  upon  conditions  affecting  a  consider- 
able number  of  people  alike,  the  government  attempts  to  secure 
them  to  the  public  and  to  the  individual.  Criminal  justice,  the 
proprietary  action  of  the  state,  and  the  police  power,  are 
equally  enlisted  for  this  purpose. 

The  exercise  of  the  police  power  for  the  protection  of  safety, 
order,  and  morals,  constitutes  the  police  in  the  primary  or  nar- 
rower sense  of  the  term.  It  is  a  power  so  vital  to  the  com- 
munity that  it  is  often  conceded  to  local  authorities  of  limited 
powers.  It  is  the  police  power  in  this  narrower  sense  of  the 
term  which  the  Supreme  Court  of  the  United  States  concedes 
on  principle  to  the  states,  even  where  its  exercise  affects  inter- 
state and  foreign  commerce. 

§  11.  Care  and  control  of  dependents.— It  will  be  convenient 
to  treat  in  connection  with  these  primary  social  interests,  the 
care  and  control  of  dependent  classes,  especially  of  minors. 
While  not  greatly  developed  until  recent  times,  the  power  is 
generally  felt  to  belong  to  the  state  in  the  fullest  measure,  and 
is  conceded  by  the  courts  without  question. 

plied   to   the  general   benefit   of   the  varieth  with  the  time,  so  varieth  this 

l»oople,   and   is   sdlus  populi;   as   the  absolute  law.   according  to   the  wis- 

people  is  the  body,  and  the  king  the  dom   of    the    king,    for    the   coininiin 

head;   and  this  ])o\ver  is  not  guided  gooil;  and  these  being  general  rules, 

by  the  rules  which  direct  only  at  the  and  true  as  they  are,  all  things  done 

common   law,    and    is   most    properly  within     these     rules     are     lawful." 

named  policy   and   government,    and  (I'rotliero     Statutes     and     Constitu- 

as    the    constitution     of    this     body  tional   Pocnmcnts,  p.  341.) 


g  GOVERNMENTAL  POWERS.  §  12 

;;  12.  Economic  interests.  — That  the  organized  community 
should  att'ord  its  members  protection  against  physical  danger 
and  moral  scandal,  is  generally  admitted,  and  only  the  ques- 
tion to  what  extent  this  protection  should  go,  is  controverted. 
It  is  otherwise  as  to  economic  interests.  Wealth  is  almost  as 
essential  to  our  civilisation  as  safety,  order,  and  morals;  but 
while  these  can  be  secured  to  a  substantial  degree  by  restraint, 
the  acquisition  of  wealth  is  based  on  active  efforts;  and  while 
systematic  restraint  proceeds  naturally  from  government, 
active  effort  must  be  chiefly  individual.  Our  economic  system 
is  es.sentially  individualistic,  and,  more  than  that,  is  based 
upon  peaceful  struggle  and  conflict.  An  absolute  govern- 
mental control  over  economic  interests,  similar  to  that  over 
the  interests  of  order,  peace  and  security,  would  be  possible 
only  if  with  regard  to  the  former  as  well  as  with  regard  to 
the  latter,  ('([uality  were  a  desirable  or  practicable  end,  i.  e., 
if  the  state  were  socialistic.  Under  existing  conditions,  gov- 
ernmental activity  in  the  care  and  control  of  economic  interests 
must  operate  largely  as  interference  and  disturbance,  as  fa- 
voritism or  oppression. 

There  are  important  exceptions  to  this  rule,  and  especially 
in  providing  faeilities  of  communication,  the  necessity  and  the 
utility  of  governnu'iital  action  —  action  chiefly  of  a  corporate 
or  proprietary  character— has  generally  been  conceded,  and 
this  is  also  a  case  where  the  benefit  bestowed  is  tolerably  equal 
for  all.  As  the  avowed  purpose  of  legiplatioii  dealing  with 
economic  interests  is  generally  aid  .iikI  encouragement  to  eom- 
nierce  and  industry,  the  governmental  power  next  largely 
call«'«l  into  play  after  the  jjroprietary  power,  and  indeed  in- 
vf)lverl  in  the  latter,  is  that  of  1;ixation.  prinei])iill\'  in  the  foi-iu 
of  proteetion  atrainst  foreign  eonipet  il  ion.  in  wliirli  it  ni;i\-  at 
least  be  plausibly  nrLnied  that  there  is  an  e(|ual  benelit  to  the 
whole  comniuriity. 

iViwers  «>f  eonipulsion  ami  restraint  are  very  inndi  less  e.isily 
jiiHtified  on  the  ground  of  i'i\\in\  benelit.  I'](iuality  of  benelit 
iiuiy  b«'  claimed  for  the  suppression  of  IV.iuil.  ami  ;i  liiKJ.iiey 
townrds  ejpiality  underlies  the  re^rulnt  ions  to  pi-evcnt  oppres- 
HUtn.  Itut  miieh  of  the  restrictive  economic  legisliition  of  for- 
mer nm-.H  has  been  class  legislation,  based  upon  the  sujtpo^ed 
iieccHMity  of  imiintaining  the  established  order  of  society.  .\n(l 
pvon  to-day  there  nuiy  ])e  foinid  instanci-s  id"  police  legislation 
not  only  ai^ninst   fraud  and  op[(ression,  but   against  disorder, 


§  13  ECONOMIC  AND  NON-MATEKIAL  INTERESTS.  9 

disease  and  accident,  which  is  in  reality  legislation  favoring 
certain  economic  interests  against  injurious  competition.  Much 
of  this  legislation,  it  is  true,  is  also  class  legislation  in  a  mod- 
ern and  benevolent  sense,  based  on  the  theory  that  the  power 
of  the  state  should  come  to  the  aid  of  those  who  are  economic- 
ally and  socially  weak,  and  should  tiMiipcr  the  UMturnl  incquiili- 
ties  in  the  struggle  of  life. 

The  exercise  of  the  police  power  over  economic  interests  may 
be  divided  as  follows:  1.  protection  against  fraud;  2.  protec- 
tion against  oppression  and  the  promotion  of  economic  liberty ; 
3.  public  convenience  and  advantage ;  -t.  compulsory  benefits. 

§  13.  Non-material  or  ideal  interests.— The  cultivation  of 
moral,  intellectual  and  aesthetic  forces  and  interests  which 
advance  civilisation  and  benefit  the  community  in  innumerable 
ways,  cannot  be  a  matter  of  indifference  to  the  state.  This  do- 
main was  formerly  left  to  the  church,  and  the  church  regarded 
it  as  her  right  and  duty  to  keep  movements  and  aspirations  of 
this  character  under  her  control.  The  church,  having  lost  her 
political  authority,  has  become  one  of  the  numerous  voluntary 
associations  pursuing  ideal  interests.  To  some  extent  the 
functions  of  the  church  have  been  assumed  by  the  state,  so 
especially  the  important  tasks  of  education  and  poor  relief, 
which,  as  dealing  with  dependent  classes,  may  properly  be 
regarded  as  primary  social  interests.  The  state  moreover  in 
many  other  ways  supports  and  encourages  the  higher  and  less 
urgent  social  interests:  by  granting  facilities  and  exemptions 
to  private  enterprise,  by  disseminating  information,  by  organ- 
ising scientific  work  of  its  own,  by  maintaining  institutions, 
museums,  etc.  All  this  the  state  can  do  without  compulsion  or 
restraint.  The  exercise  of  the  police  power  might  conceivably 
serve  the  purpose  of  guiding  and  checking  intellectual  move- 
ments so  as  to  further  the  ideas  of  the  government  of  what  is 
beneficial  to  society  or  state.  Such  a  purpose  is  however 
disclaimed  by  liberal  governments,  and  the  guaranty  of  free- 
dom of  religion  and  of  speech  and  press  removes  the  pursuit 
of  ideal  interests  on  the  whole  from  the  operations  of  the  police 
power. 

§  14.  Political  interests.— Political  interests  as  distinguished 
from  those  which  are  moral  and  intellectual  vnelude  the  ef- 
ficient operation  of  the  governmental  machinery,  and  the 
maintenance  and  strengthening  of  the  institutions,  traditions 


10 


GOVERNMENTAL  POWEKS.  5^  13 


and  sentiments  which  eonstitule  what  we  call  nationality.  The 
latter  purpose  justifies  the  exercise  of  the  power  of  eminent 
domain,  but  not  a  material  impairment  of  private  rights  with- 
out compensation.^  As  for  the  well-working  of  the  governmen- 
tal machinery,  it  may  depend  on  or  involve  two  entirely  differ- 
ent sets  of  conditions:  The  standard  of  performance  of  pub- 
lie  functions,  and  the  good  will,  approval  and  acquiescence  of 
the  people  at  large.  The  control  of  public  functions  belongs 
to  the  corporate  powers  of  the  government.  In  prescribing  the 
duties  of  officers  and  of  municipal  corporati(nis,  or  disposing  of 
their  official  rights  and  powers,  the  legislature  is  not  bound 
by  all  the  limitations  on  its  power  created  in  behalf  of  private 
liberty."'  The  same  is  probably  true  where  the  legislature  regu- 
lates the  conduct  of  elections.  The  right  of  suffrage  is  indeed 
confcrnMl  by  the  constitution,  and  cannot  therefore  be  circum- 
scribed by  arbitrary  legislative  conditions;  but  it  is  neverthe- 
less a  j)ublic  function,  the  efficient  exercise  of  which  requires 
a  large  amount  of  administrative  machinery;  the  citizen  there- 
fore cannot  claim  the  same  liberty  in  voting  as  in  the  conduct 
of  his  |)rivate  affairs,  and  election  regulations  may  be  regarded 
as  conditions  annexed  to  the  enjoyment  of  a  privilege. 

So  far  as  Ibr  altitude  <>1"  the  people  toward  the  government 
<'an  lie  controlled  by  governmental  restraints,  such  restraints 
would  fall  under  the  donniin  of  the  police  power.  In  former 
times  the  state  aimed  steadily  to  influence  political  sentiment 
by  {)rohibiting  the  expression  and  dissemination  of  disaffection, 
ami  by  enfon'iiig  at  least  oulwai-<l  1raii(|uillity  and  ac(iuiescence 
in  the  existing  order  of  things;  and  tlie  idea  of  "good  order" 
included  governmental  staliiiity  based  on  sueli  restraint. 

It  i.s  however  regarded  as  contiary  to  constitutional  liberty 
in  a  free  state  to  exercise  compulsory  control  ovci-  public  opin- 
ion ami  agitation,  wliieli  refrains  from  the  practice  or  incite- 
ment of  violence  and  fi-nm  injni'\  to  pi'ivate  tiLilits,  and  the 
conHtitiitions  atte)ii|»l  in  |>;iit  at  le;ist  to  secure  this  libei-ty  by 
Hpecial  guaranties.     Tli>'  eonsl  itntiimal  provisions  lieju-inM-  npou 

•  Thn    ({"^■'rtiinoiit    nC    flic    I'liiliMJ  iii;iy     \>r    r<(|iiii('il     In    he    incscrvcd, 

Hinttf)    may   ('oiKlcnin    privat)'    pron-  u|m)ii    |iiiymoiil    <>('    <iim|M'iis;iti(iri,    if 

vrty  for  IIh-  |iiir|>oH(<  of  proMiTviny  a  tlioy    arc    privad-    pmiHilv.       I'Vciidi 

'  ■-•    rirni       I-;'"      -   iukI.  Ifiiitc.l  law    Marcli    .'<(»,    IHST,    |)n<T()((|    Droit 

••   V.  (Ji-i  .    KIcdric    K.    1{.  .V.lniiiiiHtratrif,    §    i:U:t.      Ah   to    lla^ 

<•«.,   lfl«i   r.  H,  flflS.      Tiirlcr  foreign  I<'KiHla»ioii  hcc  §    tS.'l  and  'JCW!,  infra. 
liiim,  iDoniiiiiciitH  o(   liiNtor/    or   art  "  Sco  §31(1,  infr.i. 


§  15  ATTITUDE    TOWARD    DIFFEKExXT   INTERESTS.  H 

this  subject  are  those  securing  freedom  of  speech  and  press, 
and  the  right  of  assembly  and  petition.  These  guaranties  create 
another  sphere  of  interests  which  is  on  principle  withdrawn 
from  the  police  power. 

§  15.  Relative  attitude  of  the  government  toward  the  three 
classes  of  interests. — Broadly  speaking,  there  are  therefore 
three  spheres  of  activities,  conditions  and  interests  which  are 
to  be  considered  with  reference  to  the  police  power;  a  con- 
ceded sphere  affecting  safety,  order  and  morals,  covered  by  an 
ever  increasing  amount  of  restrictive  legislation ;  a  debatable 
sphere,  that  of  the  proper  production  and  distribution  of 
wealth,  in  which  legislation  is  still  in  an  experimental  stage, 
and  an  exempt  sphere,  that  of  moral,  intellectual  and  political 
movements,  in  which  our  constitutions  proclaim  the  principle 
of  individual  liberty.  This  threefold  division  will  form  the 
basis  for  the  analysis  of  legislation  which  is  to  follow.  The 
division  has  reference  to  the  exercise  of  restraint  and  com- 
pulsion by  the  state;  its  corporate  powers  and  resources  are 
freely  used  for  the  furtherance  of  economic,  non-material  and 
political  interests,  which  the  police  power  would  not  attempt 
to  control. 

These  spheres  may  overlap  and  a  reconciliation  should  then 
be  effected  between  the  principles  of  control  and  liberty.  Thus 
conditions  affecting  health  and  morality  are  primarily  subject 
to  the  police  power,  but  all  restrictive  legislation  should  have 
the  utmost  regard  for  the  freedom  of  science,  art  and  literature, 
which  may  be  jeopardised  by  discrimination  against  schools 
of  medicine,  by  the  prohibition  of  vivisection,  by  the  establish- 
ment of  false  standards  of  purity,  etc.  On  the  other  hand 
religion  and  speech  and  press  are  primarily  free,  but  that  does 
not  prevent  them  from  being  subjected  to  restraints  in  the 
interest  of  good  order  or  morality.  Very  little  ditiHculty 
has  so  far  been  encountered  in  the  mutual  adjustment  of  these 
interests. 

§  16.  Private  right  and  public  welfare.— Public  policy  as- 
sumes the  superiority  of  social  over  individual  interests.  The 
highest  conception  of  the  state  however  repudiates  the  abso- 
lute and  unquestioning  subordination  of  the  individual  to 
society  and  insists  upon  the  preservation  of  individual  liberty 
as  an  essential  factor  in  civilisation  and  as  one  which  will  ulti- 
mately lead  to  a  more  perfect  social  welfare  though  it  may 


1-2  GOVERNMENTAL  POWERS.  ^  17 

produce  temporary  disturbances  or  delays  in  the  accomplish- 
ment of  what  is  believed  to  be  the  public  good.  This  concep- 
tion of  the  state  is  endorsed  by  our  constitutions,  and  the  idea 
of  a  public  welfare  bought  at  the  cost  of  suppressing  individual 
liberty  and  right  is  therefore  in  our  system  of  government 
inadmissible. 

It  may  be  true  that  ultimately  there  can  be  no  conflict  be- 
tween the  highest  individual  and  the  highest  social  interest,  and 
the  harmony  of  all  interests  is  an  ideal  which  every  legislative 
measure  professes  to  contemplate  and  to  further.  But  until 
the  conditions  of  that  harmony  are  discovered,  it  must  happen 
that  geiuiine  individual  interests  are  made  to  yield  not  only  to 
genuine  social  interests,  but  also  to  interests  which  while  being 
put  forward  as  social  are  not  such  in  reality.  The  question 
then  arises  whether  a  measure  of  that  character  is  justified  as 
;iii  ('xercise  of  a  power  which  is  conceded  only  as  a  means  of 
])roinoting  the  ]uiblic  welfare. 

The  relation  of  private  right  to  public  welfare  receives  a 
peculiar  importance  in  our  system  of  constitutional  law  through 
the  power  of  the  courts  to  declare  hiAvs  null  and  void,  if  deemed 
contrary  to  the  constitution. 

5i  17.  The  constitution  as  judicially  enforceable  law.  — In 
(In-at  iirilain  the  constitution  is  the  sum  of  j)rinciples  which 
an;  observed  in  tlu;  (^xercise  of  the  powers  of  government,  and 
wliicji  are  embodied  either  in  acts  of  Parliament  or  in  unwrit- 
ten traditions  antl  uiidi-i-standings.  Hut  Ijolh  the  law  and  the 
custom  of  the  constitutinii.  having  no  higlier  formal  sanction 
than  ordinary  statutes  nr  the  <M»niiiion  law,  yield  to  any  act 
that  I'arlianieiit  may  pass,  liowever  contrar\'  lo  aecejited  and 
fundamental  principles  of  government.  A  statute  is  therefore 
legally  superior  to  the  constitution. 

A  con.stitution  which  is  embodied  in  a  distinct  written  instru- 
ment is  generally  acknowledged  to  l»c  legally  binding  upon 
ordinary  legislat i(u>.  but  its  aulhorit,\  may  have  no  other  sanc- 
tion than  the  oath  and  conscience  of  the  legislative  factors  of 
the  govcrnupiit.  The  Swiss  constitution  e\|)i-essly  provides 
that  the  hiWH  and  genei-al  resolutions  enacted  \)y  the  Federal 
AHKcmbly  and  the  treaties  ratified  by  it  shall  he  hindiiiL;-  upon 
the  federal  courts.'"  In  the  (iiiman  states  (in  the  lOnipife  the, 
probh'tn    docs    not    i-xist   since    tin-    constitution    is    changeable 

i^HwijMt  Kcilcral  (!onHtitutifni,  Art.    li.'J. 


§  18  CONSTITUTIONAL   LIMITATIONS.  I3 

in  the  forms  of  statutory  legislation)  it  is  understood  that  a 
statute  enacted  in  due  form  cannot  be  questioned  by  the 
courts."  The  German  view  is  that  the  power  to  make  laws 
under  the  constitution  necessarily  implies  the  power  to  inter- 
pret the  constitution,  and  that  the  department  called  upon  to 
interpret  in  the  first  instance  must  be  presumed  to  have  been 
^uiven  power  to  make  its  interpretation  conclusive.  The  Ameri- 
can view  is  that  the  power  to  apply  and  enforce  the  law  neces- 
sarily involves  the  power  to  choose  between  two  conflicting? 
laws  and  to  give  effect  to  that  having  superior  force,  ignoring 
that  of  inferior  authority.  This  view  is  also  conformable  to 
the  theory,  which  is  accepted  almost  as  axiomatic  in  our 
jurisprudence,  that  the  interpretation  of  the  law  is  a  judicial 
and  not  a  legislative  function,  Avhereas  the  German  view  ex- 
presses perhaps  more  truly  the  idea  of  the  co-ordination  of 
the  legislative  with  the  judicial  power.  The  question  is  one 
of  fundamental  constitutional  policy,  and  in  America  has  been 
settled  from  the  beginning  of  independent  government  in 
favor  of  the  courts.  The  judicial  power  to  declare  laws  un- 
constitutional has  been  approved  by  experience  as  one  of  the 
most  valuable  features  of  American  government ;  it  is  acqui- 
esced in  by  the  legislative  power,  and  it  has  in  some  instances 
been  recognised  by  the  constitutions  themselves.^^ 

§  18.  Specific  limitations  upon  police  legislation.— The  con- 
stitutional limitations  upon  police  legislation  are  partly  specific 
and  partly  general.  The  principal  specific  limitations  are  di- 
rected against  legislation  establishing  a  religion  or  forbidding 
its  free  exercise,  abridging  the  freedom  of  speech  and  press, 
and  assembly,  restraining  the  right  to  keep  and  bear  arms,  and 
authorising  unseasonable  searches  and  seizures.  Retroactive 
legislation  is  restrained  by  the  prohibition  of  ex-post  facto  laws 
and  of  laws  impairing  the  obligation  of  contracts,  and  the 
power  of  eminent  domain  is  restrained  by  the  requirement  of 
compensation. 

It  is  clear  that  a  vast  field  of  legislative  j)Ower  is  not  within 
these  restraints.  If  the  constitutions  were  narrowly  construed 
they  would  furnish  no  safeguard  against  laws  restraining 
the  freedom  of  occupation,  and  of  migration  and  settlement 


11  Georg     Meyer     Staatsrecht,     p.  1- Constitution    of    California.     1. 

519.  §22;   Constitution  of  Ohio,   IV.  §2. 


14  OOVEKNMICXTAL  POWERS.  §  19 

Avitliiii  the  stiite,  prohibiting-  organised  associations,  or  limiting 
the  power  of  individuals  to  acquire  or  dispose  of  property  or 
to  make  contracts. 

Ji  19.  General  limitations.  — To  prevent  oppressive  legisla- 
tion of  this  kind  the  courts  must  rely  upon  the  general  clauses 
of  the  con.stitution. 

Of  these  the  duty  of  the  equal  protection  of  the  laws  enjoined 
upon  the  states  by  the  federal  constitution  is  perhaps  the  great- 
est safeguard  of  justice.  The  etfect  of  the  principle  of  eciuality 
upon  the  jiolice  power  wall  be  fully  discussed  in  a  subsequent 
portion  of  this  treatise.  It  is  necessary  here  to  say  a  few^  words 
regarding  another  general  principle  which  the  fourteenth 
amendment  couples  with  that  of  equality,  nam-'ly.  the  principle 
of  due  process  of  law. 

55  20.  Due  process  of  law.  — The  guaranty  that  no  i)erson 
sluiU  be  deprived  (»f  life,  liberty  or  property  without  due  pro- 
cess of  hiw  may  be  traced  to  the  Great  Charter  and  was  origi- 
nally intended  as  a  safeguard  against  the  arbitrary  and  des- 
potic exercise  of  exeeutive  power,  and  not  <iu;iiiist  It^gislat ion. 
The  same  meaning  was  probal)i\'  altadicd  to  it  by  the  fraiu^Ts 
of  i»ur  first  constitutions.  Not  that  arbitrary  acts  depriving  an 
individual  of  life,  liberty  or  property  had  never  taken  the  Foiiii 
of  statutes;  I'iirliament,  on  the  contrary  bad  freipiciitly  been 
made  the  instrument  of  despotism;  l)nt  these  abuses  were 
guarded  against  by  special  const  it  utionai  pi-oliibitions :  the  pro- 
hibition of  acts  of  attaindci-.  ilic  |>rovision  that  i>rivate  ])rop- 
erty  nnist  not  be  taken  i'or  public  use  without  cdiiipcnsal  ion, 
and  thai  the  obligation  nf  cunt  rads  nnist  not  be  ini|)aircd.  .\ii 
Hct  of  legislation  taking  life,  libei'ty  or  pi'opcrt\  and  not  cov- 
ered l)y  eithei'  n['  these  clauses  was  pmbably  not  tiioui;lit  of 
when  tlie  first  eoiistilulions  were  framed. 

At  the  [ireseiit  time  howevei-  the  idea  ol"  due  prcicess  is  Iri'dy 
a[)plied  to  legislation,  and  nieaus  with  regard  to  it  "coiirorniit.\ 
to  the  Mettled  maxiniH  of  free  government."'-'  Where  an  act 
of  jf(»vernirie!it    is  basetl    upon   tlie  especial   circumstances  of  a 

liolf   V.   O'lJi'illy,    74    N.    V.  iiHiialiy  iileiitificil  witli  <lno  proccHs], 

•  1  '.  .foliiimiii,  .).,  ill  Hiink  of  *'<>  in<"r)r|i<ir;it<M|  into  llic  coiistil  iilioii  of 

111   V.   Oki'ly.   4    Wli.    'J.iri,    l.Sl!»:  M;iivl.iii<l.  .•iflcr  voliiiiuj.s  .spoki-ii  iiini 

t(»     flu'     woriln     from     Ma);im  writ  I  in   with  ;i    \iinv   to  tlicir  cvposi- 

<  iuirtn    |/*cr   legem    Icrmr,    wliicli    iH  tion,  the  j^nod  Hcnm'  of  iii.nikiinl  1i;ih 


^  20  I^UE  PROCESS  OF  LAW.  •(.', 

particular  case,  these  maxims  require  that  the  individual  af- 
fected have  an  opportunity  to  be  heard;  this  hearing  affords 
him  some  assurance  that  the  act  will  not  be  entirely  arbitrary 
or  without  cause.  Where  an  act  of  government  applies  to  an 
indefinite  luimber  of  people  alike  and  thus  establishes  a  general 
principle,  notice  to  every  individual  affected  thereby  is  im- 
possible and  uiniecessar}'  and  the  generality  of  the  principle  is 
supposed  to  be  a  guaranty  against  its  being  arbitrary  and  un- 
reasonable. This  is  tlio  fundamental  distinction  between  ad- 
ministration and  legislation ;  the  former  requires  notice  and 
hearing  which  with  regard  to  it  constitutes  due  process,  while 
the  latter  does  not.  But  it  does  not  follow  that  every  act  of 
legislation  is  due  process  or  the  law  of  the  land;  an  arbitrary 
statute  is  neither.!^  Notice  and  hearing  even  in  administration 
would  be  without  value  if  it  did  not  assure  a  just  cause  for 
proceeding  against  the  individual;  the  essence  of  due  process 
then  is  just  cause,  and  this  must  underlie  every  act  of  legishi- 
tion. 

The  just  cause  of  legislation  is  the  performance  of  some 
legitimate  function  of  government.  A  statute  not  supported  by 
such  cause  is  not  due  process  and  it  does  not  make  any  differ- 
ence whether  the  statute  strikes  at  one  individual  only  or  a 
whole  class  at  the  same  time. 

It  thus  becomes  a  requirement  of  the  constitution  that  every 
statute  should  be  the  exercise  of  some  recognised  power  jus- 
tified by  the  reason  and  purpose  of  government.  In  order  to 
ascertain  whether  legislation  is  constitutional  oi"  not,  we  must 
analyse  the  powers  of  government  and  define  the  nature  of 
each.  Each  governmental  power  has  its  inherent  law,  and  this 
law  which  the  due  process  of  the  constitution  implies  and  sup- 
ports stands  above  legislation  and  the  legislature,  and  is 
enforced  by  the  courts  in  the  ordinary  administration  of  jus- 
tice. 

There  has  never  been  a  civilised  governnienf  wliicli  has  not 

at  length  settled  down  to  this:  that  S.  97;  Zeiglor  v.  S.  &  X.  Ahi.  R.  R. 
they  were  intended  to  secure  the  in-  Co.,  58  Ala.  594,  598;  Sears  v.  Cot- 
dividual  from  the  arbitrary  exercise  trcll,  5  IMieh.  i!51,  254;  Clark  v.  Mit- 
of  the  powers  of  government,  unre-  chell,  64  Mo.  564,  578;  Westervelt  v, 
strained  by  the  established  principles  Gregg,  12  N.  Y.  202,  209;  Officer  v. 
of  private  rights  and  distributive  Young,  5  Yerg.  (Tenn.)  320;  Bey- 
justice."  man  v.  Black,  47  Tex.  558. 
14  Davidson  v.  New  Orh^ans,  96  V. 


1(3  GOVERNMENTAL  POWERS.  55  21 

recognised,  and  practically  acted  npon,  the  existence  of  limi- 
tations of  the  nature  here  indicated.  For  all  governments 
l>r()fess  to  apply  or  to  make  laAV,  and  the  nature  of  law  implies 
the  idea  of  restraint  according  to  intelligible  principles  of 
reason.  The  peculiarity  of  American  jurisprudence  and  gov- 
ernment lies  in  the  i)ossibility  of  subjecting  legislation  to  judi- 
cial control  witli  a  view  t<»  I'uforcing  these  principles  and  limi- 
tations. In  one  view  of  the  matter,  it  is  still  the  government, 
and  only  a  ditferent  department  of  it,  which  conclusively  deter- 
mines whether  a  given  act  is  within  the  principle  of  reason  or 
not.  But  the  great  advantage  of  the  American  system  is  that 
the  power  of  conclusive  determination  is  Avithdrawn  from  a 
body  accustomed  to  follow  considerations  of  expediency'  and 
interest,  and  vested  in  organs  which  by  virtue  of  their  consti- 
tution. iiu'IIkkIs  of  |)i'(icc(luf('.  .-iiid  t I'.'iditions,  are  peculiarly 
(pialitieil  ami  apt  to  give  etTei-t  to  the  claims  of  reason  and 
ju.stice. 

^  21.  Justice  and  judicial  policy.— The  guaranty  of  due 
I)roc»'ss  is  thus  a  guai-auty  against  any  abuse  of  governmental 
power  undci-  tlu'  plea  of  public  policy,  but  it  cannot  be  as  read- 
ily construed  into  a  guaranty  of  a  certain  system  or  theory  of 
government.  Our  constitutions,  however,  contain  other  gen- 
eral clauses.  Thus  they  state  the  principle  of  the  Declaration 
of  Independence  that  life,  liberty  and  the  pursuit  of  happiness 
are  the  inalienable  rights  of  man,  that  governments  are  insti- 
tuted tovseeure  these  rights,  and  that  the  enumeration  of  e<'r- 
tniii  ritrhls  in  the  constitution  shall  not  be  construed  to  imj)air 
other  riv'hls  retained  liy  the  people.  Tf  these  clauses  can  be 
reganb-<|  ;is  binding  upon  the  legislature  and  as  eiulxxlying  a 
definite  theory  ol"  j,'overnineii1 .  then  it  follows  that  the  jioliey 
of  the  h'trisiaturr  can  be  met  by  the  policy  of  the  constitution, 

and  eoTlHe(Hieiit  ly    lie  (ivecridcii    by   the   courts   uildei'  the   J)lea   of 
justice. 

The  coiifliet  between  justice  and  policy  becomes  here  in  real- 
ity nothing  more  than  a  conflict  between  dilTerent  policies,  and 
the  judicial  control  over  legislation  assumes  a  tloubtful  aspect. 
What  is  meant  by  liberty  depends  \ryy  nuK'h  ui)on  eiionomic^ 
and  social  ideas;  should  tlim  llic  |)ri'cise  eonlrnt  of  lil)eiiy  be. 
held  to  he  fixeil  by  the  constitution,  or  to  be  variable  in  accord- 
ance with  chatiging  ideas  as  to  the  pf<iper  sco|)e  of  govern- 
ment?   If  the  fundamental  law  is  to  lullil  its  purfxtse,  it  should 


§22  RESTRAI^'T  AND  COMPULSION.  17 

be  flexible  and  yield  to  the  changing  conditions  of  society.  A 
number  of  state  courts  have  enforced  their  views  of  libert\- 
against  legislation  enacted  for  the  protection  of  laborers.  IMuch 
of  this  legislation,  while  perhaps  unwise  or  premature,  repre 
sents  an  effort  of  the  legislature  to  realise  a  new  ideal  of  social 
justice,  consisting  in  the  neutralisation  of  natural  inequality  1)\- 
the  power  of  the  state.  Even  conceding  that  the  older  princi- 
ples of  justice  are  more  conformable  to  the  spirit  of  the  found- 
ers of  our  constitutions,  it  does  not  follow  that  their  unex- 
pressed ideals  should  absolutely  control  the  progress  of  the 
law.  It  is  true  that  popular  opinion  acquiesces  in  the  judicial 
decisions,  conceding  to  the  courts  as  it  were  a  suspensive  veto. 
But  under  democratic  institutions  the  courts  cannot  be  per- 
manently at  variance  with  the  matured  and  deliberate  popular 
will.  Practically  the  present  system  of  judicial  control  over 
legislation  has  meant  in  many  cases  that  unless  all  three  depart- 
ments of  the  government  are  convinced  of  the  justice  and  rea- 
sonableness of  a  radical  change  in  social  or  economic  policy  it 
cannot  become  embodied  in  principles  of  law. 

B.     THE  POLICE  POWER  AS  A  POWER  OF  RESTRAINT  AND  COM- 
PULSION.    §  22-26. 

§  22.  Corporate  and  moral  capacity  of  the  state.  — The  police 
power  restrains  and  regulates,  for  the  promotion  of  the  pub- 
lic welfare,  the  natural  or  common  liberty  of  the  citizen  in  the 
use  of  his  personal  faculties  and  of  his  property. 

The  state  may  also  promote  the  public  welfare  through  the 
use  of  what  we  may  call  its  corporate  capacity.  This  capacity 
belongs  to  the  sovereign  state  as  a  matter  of  course,  so  that  it 
may  hold  and  dispose  of  property,  make  contracts,  employ 
agents  or  servants,  and  sue;^^  and  it  may  be  bestowed  by  it 
upon  subordinate  political  divisions  like  counties,  cities,  school 
districts,  etc.  The  political  community,  moreover,  wields  a 
great  moral  influence  as  the  center  and  depository  of  national 
and  popular  interests,  traditions  and  aspirations.  These  corpo- 
rate and  moral  capacities  may  be  placed  by  the  state  in  the 
service  of  any  of  the  great  objects  of  government,  and  none  can 
be  pursued  without  their  aid.  In  the  matter  of  the  internal 
public  welfare  it  becomes  therefore  important  to  hold  apart 

15  Indiana  v.  Worum,  6  Hill   (N.  Y.)    33;    United   States   v.    Perkins, 
163  U.  S.  62.5. 

2 


jg  GOYERXMEXTAL  POWERS.  §  23 

state  activity  whicli  restrains  and  commands  from  that  which 
renders  aid  and  service:  sanitary  and  building  regulations,  com- 
pulsory school  attendance,  regulation  of  traffic,  on  the  one 
side ;  drainage,  hospitals,  fire  service,  schools  and  public  roads, 
on  the  other.  Both  classes  of  activitj"  serve  the  public  welfare, 
but  for  the  sake  of  clearness  the  term  police  power  should 
preferably  be  confined  to  the  power  Avhicli  operates  by  restraint 
ami  (Mimpulsinn.^" 

§23.  Corporate  powers  of  state  and  individual  rights.^"  — 
In  the  exercise  of  its  corporate  powers  the  state  does  not  in- 
fringe directly  upon  individual  liberty  or  the  use  of  private 
property.  It  is  true  that  its  resources  are  obtained  chiefly 
through  the  exercise  of  the  taxing  power,  and  that  property  is 
frequently  acquired  by  the  power  of  eminent  domain,  and  in  so 
far  as  that  is  the  case,  the  state  may  not  expend  its  funds  for 
purely  private  objects,  and  the  courts  determine  what  objects 
are  sufficiently  public  to  justify  the  expenditure  of  public 
funds.''*  But  objects  may  be  pursued  through  the  corporate 
activity  of  the  state,  for  which  the  police  power  may  not  be 
exercised  :  so  public  moneys  may  be  expended  for  the  embellish- 
ment of  public  grounds  and  buildings,  and  generally  for  the 
snjqxfrt  of  ni't  ;ind  science.  A\hile  it  would  be  unconstitutional 
to  require  an  owner  to  airaiigo  his  property  with  a  view  to 
aesthetic  effects.'''  Individual  liberty  is  regarded  as  more  im- 
portant Ilia II  llif  advancement  of  interests  Avhich,  while  adrait- 
tetlly  public,  are  not  urgent  or  primai-y ;  ])ut  the  issue  of  liberty 

"» If    we    comprehoiul     under    the  swamps."     So  also  Wilson  v.  Board 

torni     police     power     the     corporafc  of  Trustees,  133  111.  443. 

power  of  the  state  exercised  for  the  i"  See  also  §§  3.'")7-364,  573-582. 

puhlie  welfare,  we  sacrifice  the  ad-  isQlcotl    v.   Supervisors,  16  Wall, 

vantnge  of  a  mi>re  definite  terniinol-  (578;  Loan  Association  v.  Topeka,  20 

offv;  there  i«,  however,  authority  for  Wall.    655;    Lowell    v.    lio.ston,    111 

the  wider  use.     So  in   Xew  Orleans  Mass,  454.     As  to  money  not  raised 

Ons  f'o.  V.  Louisiana  I^i^ht  &c,  Co,,  by  taxation,  see  ITooixr  v.  Emery,  14 

11.')  V.  H.  n.'O.     "We   may   not   im-  Me.  375  and  nolo  on  p.   11211,  Thay- 

properly  refer  to  that  power  [police  cr's  (.'ases  on   T'onstifiitional   Law. 

|K.wer)  the  authority  of  the  state  to  Jo  St.  Louis  v.   Hill,   lid   Mn.  r,-27 ; 

create  educational  and  charitable  in  Si.  Louis  v.   Dorr.    145  Mo.  466;   At- 

...            .^^    ,|p,j    provide    for    the    es  torney     (iiMicra!     v.     Williams,      174 

1               i'-nl,    nuiinlcnance    and    con-  M.-iss.   476.   55   X.   E,   77;    I'arker   v, 

trol    of    public    hinliways,    turnpike  Commonwealth,  178  Mass,  199,  59  N, 

r..:id«.    canaN,    wharves,    ferries   .-ind  V].  634;    Dillon  Munic.  Corporations. 

U'UHTiiyh  lines,  and  the  drainint:  "f  8  599.     See  §181.  infni. 


s  04  CUKPOK AT E  ACT  1  V IT ^- ;   L 1 C !•; .\ .S l',S.  1 ; j 

is  not  regarded  as  primarily  involved   in   tlu^  expenditure  of 
public  funds. 

Individual  liberty  may  suffer  indirectly  through  excessive 
growth  of  state  enterprise  where  it  discoui-agcs  private  initi- 
ative. The  Supreme  Court  of  ]Massachusetts  has  held  that  the 
legislature  cannot  authorise  a  city  to  engage  in  the  business  of 
supplying  fuel  to  its  inhabitants. 2"  State  activity  may  also 
prejudice  private  interests  through  discrimination;  therefore 
it  is  commonly  provided  that  the  state  may  not  in  its  institu- 
tions give  preference  to  any  one  form  of  religious  belief,  and 
that  it  may  not  make  donations  for  sectarian  purposes.  There 
is  generally  a  tendency  to  secure  the  principle  of  equality  in 
the  distribution  of  the  advantages  which  are  at  the  disposal  of 
the  public. 21  The  principle  of  equality  of  benefits  being  se- 
cured, the  fact  that  they  must  be  ultimately  paid  for  by  taxa- 
tion is  too  remote  to  make  the  exercise  of  corporate  powers 
felt  as  a  burden.  The  result  is  that  the  range  of  the  internal 
police  is  wider  than  that  of  the  police  power. 

§  24.  Power  over  licenses  and  privileges.— The  police  power 
is  the  power  to  restrain  common  rights  of  liberty  or  property. 
When  it  is  sought  to  exercise  rights  which  are  not  common  or 
fundamental,  still  more  when  special  privileges  are  asked,  the 
state  may  grant  the  required  permit  or  license  upon  such  con- 
ditions as  it  pleases,  without  observing  the  limitations  which 
otherwise  hedge  about  the  exercise  of  the  police  power.  The 
restrictions  upon  the  exercise  of  corporate  rights  afford  th-3 
most  conspicuous  illustration  of  this ;  others  are  found  in  fish 
and  game  laws,  and  others  in  cases  of  qualified  property.  When 
the  state  grants  a  bounty  it  may  determine  the  conditions  upon 
which  it  is  to  be  obtained  with  the  like  freedom  -.  so  the  United 
States  may  regulate  everything  pertaining  to  the  payment  and 
receipt  of  pensions,  including  the  compensation  of  pension 
attorneys.22 

20  Opinion  of  Justices,   155   Mass.  ment     might     constitute     itself     an 

598,  30  N.  E.  1142,  15  L.  K.  A.  809,  agent  for  the  relief  of  the  communi- 

1892.     More  recently  the  justices  of  ty,  so  that  money  expended  for  the 

the  Supreme  court  of  Massachusetts  purpose   would   be   money   expended 

have   expressed   the   opinion   that   in  for  public  use.  In  re  Municipal  Fuel 

case  of  a  scarcity  falling  short  of  a  Plants  (Mass.),  66  N.  E.  25,  1903. 
famine,  but  yet  so  great  as  to  create  21  So  especially  in  the  Civil  Serv- 

■svidespread   and   general   distress   in  ice  Laws. 

the  community  wliieh  cannot,  be  met  22  Frisbie  v.  United  States,  157  U. 

by    private    enterprise,    the    govern-  S.  160. 


•_>()  GOVEKNMEXTAL  POWKKS.  §  25 

The  doctriDe  promulgated  iu  the  Dartmouth  College  ease-^ 
that  a  corporate  charter  i.s  a  contract,  raises  the  question  to 
what  extent  the  state  may  become  bound  by  and  to  the  condi- 
tions which  it  annexes  to  the  grant  of  a  license  or  franchise. 
It  is  obvious  that  if  a  grant  is  protected  by  the  federal  consti- 
tution from  impairment,  the  state  instead  of  having  a  greater, 
has  really  less  power  over  holders  of  franchises  than  over  other 
property  holders,  after  it  has  once  made  a  grant  without  reser- 
vation. To  a  certain  extent  this  result  follows  from  the  doc- 
trine of  the  Dartmouth  College  case ;  in  many  respects,  how- 
ever, and  especially  as  far  as  the  primary  social  interests  of 
safety,  order  and  morals  are  concerned,  it  has  been  counter- 
acted by  the  development  of  the  principle  that  the  police 
power  cannot  be  barganied  away,  and  that  therefore  any  at- 
tempt of  any  one  legislature  to  bind  the  right  of  subsequent 
legislatures  to  guard  the  safety  and  morals  of  the  people  by 
appropriate  measures  must  be  null  and  void  and  cannot  con- 
stitute a  valid  contract. ^^ 

The  application  of  this  principle  will  be  discussed  in  con- 
nection with  the  subject  of  corporate  charters  and  of  vested 
rights  under  the  police  power.  A  number  of  state  constitu- 
tions-'" expressly  provide  that  the  police  power  shall  never 
Ix*  so  abridged  as  to  permit  corporations  to  conduct  their 
business  so  as  to  infringe  rights  of  individuals  or  the  general 
Wfll-b<MnL'  of  the  state. 

?  25.  The  police  power  and  other  restraining  powers.'-*'  — 
The  polifc  jxjwi'r  dill'ers  from  other  gt)verniaeutal  powers 
which  restrain  and  compel,  l)oth  in  the  manner  of  its  opera- 
tion and  its  objects. 

Thus  it  dilVtTs  from  llic  criminal  law  in  the  conventional 
charaf'trr  of  its  restraints;  IVom  Ilic  disciplinary  powers  exer- 
risod  in  institutions  mikI  ovi-r  oflicci-s  in  lln-  fact  that  it  re- 
HtraiiiH  citizens  at  large,  who  Ikivc  not  forfeited  part  of  their 
lih«'rty.  or  surn-ndrreil  it  l)y  llicir  voluntiiry  act;  from  the 
power  of  territorial  sovereignly,  in  tli.it  it  is  exei'cised  over 
iiiciidHTs  of  the  coiiunnnify  for  whose  benefit  llie  government 

-     ■  of    f)!irliiiiiul)i    <  Ollcfjc  Hclts,   '.17    U.   S.   1'");    Slime   v.   MisHifl- 

V.  \\  I,   \  Wlinitcn,  .'51H.  Hii)|)i,  101   IT.  S.  S14. 

:•  Tborpo   V.    Uiitlnnd  &c   It.   Co.,  an  C^jiJifornia,      MiHsiHsippi,      Mis- 

:'i  Vt.  140;  NorMnv«>«tiTn  I'Vrtili/.in^'  Houri,  Montana,  Tionisiana,  Pennsyl- 

<■  V.    TTy.lo    Park,    97    U.    H.  vnnia.     » 

•'  :<>i»   IJ<-<T  Co.   V.    MaHM.'K-liii-  i'l  Srr'  :iIso  §§721-723. 


§26  OTIIKK  KKSTJ{AL\'JN(J   POWHHS.  21 

is  established,  and  Avho  have  an  absolute  right  to  rcinain 
within  its  boundaries;  from  the  taxing  power,  in  that  it  im- 
pairs liberty  otherwise  than  by  the  mere  exaction  of  a  sum 
of  money.  The  police  power  differs  in  its  objects  again  from 
the  taxing  power,  in  that  the  latter  aims  primarily  to  provide 
ways  and  means  for  the  carrying  on  of  the  governmcMit,  no 
matter  for  what  specific  purpose.  The  collection  of  the 
revenue  may  require  very  considerable  impairment  of  the 
freedom  of  individxial  action,  in  order  to  guard  against  an 
evasion  of  the  tax.  It  is  sufficient  to  mention  the  irksome 
restraints  incident  to  the  collection  of  customs  and  internal 
revenue,  the  right  of  search,  the  regulations  regarding  the 
manufacture  of  alcoholic  products— restraints  and  regulations 
which  do  not  claim  to  promote  the  public  welfare.-"  It  is 
true,  however,  that  the  taxing  power  may  be  exercised  to  favor 
or  discourage  economic  or  social  tendencies.  Conspicuous 
illustrations  are  afforded  by  the  taxation  of  liquor  and  oleo- 
margarine, above  all  by  the  protective  tariff.  The  power  is 
still  ostensibly  based  upon  the  need  of  revenue  and  upon  this 
plea  the  aid  of  the  federal  government  may  be  enlisted  in  favor 
of  or  against  industries  and  practices  with  which  by  virtue  of 
its  general  governmental  powers  it  would  have  no  concern. 

§  26.  Police  legislation  and  the  criminal  law.— The  sanction 
of  a  law  passed  in  the  exercise  of  the  police  power  is  usually  a 
penalty,  and  the  violation  of  the  law  constitutes  technically  a 
crime.  For  many  constitutional  purposes  therefore  police  leg- 
islation is  criminal  legislation,  especially  in  the  matter  of  pro- 
tection against  self-crimination,  the  guaranty  of  a  jury  trial, 
and  the  prohibition  of  ex  post  facto  laws.  With  regard  to  this 
last  prohibition  it  should,  however,  be  noted  that  a  police  re- 
straint is  not  in  itself  a  penalty,  and  may  therefore  be  imposed 
for  a  fact  antecedent  to  a  statute  as,  e.  g.,  where  a  law  should 
forbid  the  granting  of  liquor  licenses  to  ex-convicts. ^s 

There  is  however  a  difference  between  police  legislation 
and  criminal  legislation  which  is  popularly  well  understood 
and  which  is  not  without  legal  and  constitutional  significance. 
The  peculiar  province  of  the  criminal  law  .is  the  punishment  of 
acts  intrinsically  vicious,  evil,  and  condemned  by  social  senti- 
ment; the  province  of  the  police  power  is  the  enforcement  of 

27  Felsenheld  v.  United  States,  186  -is  See  Hawker  v.   New  York.   170 

U.  S.  126,  regulation  of  method  of     U.    S.    189,    and    discussion    of    this 
putting  up  packages  of  cigarettes.         case,  §  54^,  infra. 


•-.)  GOVEKXMENTAL  POWEKS.  S  96 

merely  eouventional  restraints,  so  that  in  the  absence  of  posi- 
tive lejjfislative  action,  there  would  be  no  possible  offense.--' 
The  difference  here  referred  to  roughly  corresponds  to  that 
between  misdemeanors  and  felonies  or  infamous  crimes,  or 
jierhaps  still  more  to  that  between  mala  prohibita  and  mala  in 
se,  sometimes  depreeatetl  as  unscientific,  l)ut  valuable  from  the 
point  of  view  of  legislative  policy,  especially  in  the  matter  oT 
punishment.  It  has  been  the  common  practice  of  legislation  to 
punish  police  offenses  as  misdemeanors,  i.  e.,'  by  fine  or  commit- 
ment to  the  jail,  and  to  reserve  imprisonment  in  the  peniten- 
tiarv  for  infamous  crimes,  which  therebv  become  technij-allv 
felonies.  There  are  however  some  exceptions  to  this  rule,  and 
in  connection  with  them  it  must  be  asked  wliether,  conceding 
the  legislature  may  forbid  and  punish,  there  are  no  limits  to  the 
degree  of  punishment  it  may  impose.  Thus  in  a  number  of 
states  it  bas  been  made  a  felony  to  be  a  party  to  a  trust.  In 
Illinois  nuirriages  between  first  cousins  are  declared  incestuous 
so  that  j>arties  to  them  are  punishable  by  imprisonment  in  the 
peniti'Utiary  for  a  term  not  exceeding  ten  j'ears.  If  it  be  con- 
ceded tliat  trusts  and  marriages  between  first  cousins  may  be 
constitutionally  forbidden,  yet  they  are  distinctly  mala  pro- 
hibita and  not  mala  in  se ;  the  legislature  condemns  Avhat  is 
(lone  in  iiiost  civilised  communities  with  impunity,  and  what 
may  lutiK'stly  be  regarded  as  harmless.  Can  it  be  that  the  legis- 
lature has  i)()wer  to  further  any  policy  it  may  deem  wise  by 
visiting  ui)on  offenders  the  extreme  penalties  of  the  law  .^  Not, 
it  would  st'cni.  in  states  which,  like  Illinois,  have  constitutional 
provisions  to  tlif  effect  that  all  peiuilties  shall  be  proi>ortioned 
to  the  nature  of  the  offense;  nor,  it  is  conceived,  in  other  states 
in  which  the  constitution  is  silent  on  this  point,  so  long  as  im- 
plied limitations  u|)on  the  legislative  power  of  any  sort  are 
recognised.  Laws  of  this  n;itui-e  ;ii-e  not  enforced,  and  tluMi- 
enforcement  would  shne|<  the  cdninion  sense  of  fitness  and  jus- 
tice. The  recognition  ol'  ,1  pfiiK-ipJe  to  the  effect  that  violations 
of  po.sitive  regulations  not  involving  any  moral  turpitude  can- 
not coMHtitutionally  Ite  trciled  jis  infamous  crimes  might  W(>11 
be  jtiHtified  by  tin-  intritisic  difference  of  purpose  between  the 
I)f»li<'e  power  and  the  criminal  law. 

^0  Tho   'liHtinrtinn    if    m'r-iiiH    tn    lie  oh  thnn  the  law;  in  tlio  jiidgnipnt  of 

rern(;niM'<|    l,y    .Miiiiti>f(f|tiirMi    wlipn    ho  fiiiiicH,    if    is    rnflior    ftic    l;iw    wiiicli 

uayn:     "  In  fho  oxoroiw  of  pnliop,  if  pnniHhoH      fli:in      (he      inaciafrnto.  " 

i*  rnthcr  fho  mnjjixtrnto  who  jMiniBh-  (Spirit   r.f  the  I,:iwh,  X.XVI,  -24.) 


CHAPTER  II. 

METHODS  OF  THE  POLICE  POWER. 

§  27.  Outline.— The  police  power  like  other  powers  of  gov- 
ernment may  be  subjected  to  limitations  both  from  the  innni 
of  view  of  its  purposes  and  from  the  point  of  view  of  its  means 
and  methods.  An  analysis  of  the  various  interests  which  may 
or  may  not  be  controlled  by  the  exercise  of  compulsion,  will 
reveal  the  limitations  of  the  first  class;  those  of  the  second 
class  will  appear  from  an  examination  of  the  rights  upon  which 
the  police  power  acts  and  the  particular  manner  and  degree 
in  which  the  free  exercise  and  enjoyment  of  these  rights  is 
impaired. 

As  to  the  rights  acted  upon,  they  are  comprised  under  the  two 
great  heads  of  liberty  and  property.  Liberty  has  various  gra- 
dations: we  may  distinguish  the  liberty  and  integrity  of  the 
body,  the  liberty  of  private  conduct,  liberty  of  social  inter- 
course, liberty  of  opinion,  and  the  liberty  of  assuming  legal 
relations  with  other  persons,  which  we  may  designate  as  civil 
liberty.  Civil  liberty  is  the  chief  means  of  acquiring  property, 
and  many  forms  of  property  can  be  enjoyed  only  through  acts 
of  disposition  with  regard  to  them,  so  that  bare  undisturbed 
possession  is  of  no  value.  The  restraint  of  civil  liberty  may  un- 
der circumstances  virtually  result  in  the  taking  of  property. 
As  both  rights  are  coupled  together  in  the  constitutional  pro- 
tection, a  rigorous  distinction  is  often  immaterial. 

As  to  the  manner  of  its  operation,  there  are  two  funda- 
mental problems  which  will  require  extended  discussion:  how 
and  to  what  extent  does  the  principle  of  eciuality  control  and 
modify  the  exercise  of  the  police  power  ?  and :  may  the  police 
power  go  so  far  as  to  take  away  or  destroy  a  person's  prop- 
erty, and  if  so  under  what  conditions?  The  latter  problem  in- 
volves an  inquiry  into  the  sanctity  of  vested  rights  and  the 
legitimacy  of  retroactive  legislation. 

From  the  absolute  taking  of  property  we  can  in  most  cases 
distinguish  measures  of  restraint  and  regulation,  which  deter- 
mine the  conditions  under  which  a  right  is  to  be  enjoyed  or 
exercised.     As  these  are  the  normal   methods  of  the   police 

23 


04  METHODS  OF  THE  POLICE  POWER.  §  28 

power,  a  preliminary  examiuatiou  of  their  various  forms  will 
further  illustrate  and  exphiin  the  general  nature  of  the  power 
itself. 

;;  28.  Restraint  as  distinguished  from  regulation  and  pro- 
hibition.—The  term  restraint  may  be  used  to  designate  the  for- 
biildiug  and  punishing  of  the  excess  or  abuse  of  liberty  or 
property  to  the  inconvenience  or  injury  of  the  commuuity; 
regulation  differs  from  restraint  either  by  detining  by  a  pre- 
cise line  the  limit  beyond  which  rights  may  not  be  exercised, 
or  by  creating  ])ositive  duties  which  without  the  statute  would 
have  no  existence;  by  prohibition  is  meant  the  forbidding  of 
acts  in  them.selves  harmless  because  they  may  be  carried  to 
excess. 

Restraints  in  the  sense  here  indicated  are  covered  by  the 
common  law  of  misdemeanors,  especially  the  law  of  nuisance, 
conspiracy  against  trade,  and  seditious  libel.  The  general  rule 
that  "when  a  thing  is  done  to  the  injury  of  the  whole  com- 
munity, and  suflieient  in  nuignitude  for  the  tribunals  to  notice, 
it  is  cognizable  criminally,"-"'  which  is  also  embodied  in  the 
offense  of  a  common  nuisance,'"  makes  it  possible  to  prosecute 
and  punish  many  forms  of  evil  or  excess  not  otherwise  tie- 
fined.  The  j)olify  of  the  lavr  in  allowing  such  prosecutions 
flilVers  radically  from  that  i)ursued  with  regard  to  graver 
crimes,  all  of  whi"-h  ;in'  delined  with  very  considerable  minute- 
ness. The  offense  of  ;in  injury  to  the  public  is  vague  not  (udy 
because  the  elements  eonsliluting  it  are  not  specilied,  but  be- 
cause nt)  definite  right  or  duty  is  violated  by  it.  Fraud  and 
libel  involve  fal.sehood  which  is  a  distinct  wrong,  but  con- 
s|)iracy  against  trade  ;in(l  seditious  libel  (if  true)  violnle  only 
a  (trevailiiig  <!onception  <it"  pul»lic  interest.  The  punishnienl 
of  acts  «»f  the  latter  class  is  Ihi  in  ffirc  not  ;i  mattei-  of  justice, 
but  of  policy,  nnd  falls  under  the  lieail  ol"  the  police  powcM-. 
The  criiiiiiuility  of  .sticli  acts  is  moreover  entirely  a  nuitlei-  oT 
decree;  it  has  ncvr-r  been  attempti'd  to  define  with  exactness. 
Jit  which  point  the  cmissi(»n  of  snioUe,  the  i)olluli»»n  »»l"  a  river, 
or  the  obHlruction  of  a  street,  begins  t<»  he  ;i  public  od'eiise. 

Police  letfJHlatijui  which  contejits  ilsclf  with  resli-aininti-  ex- 
CPHH  withfuit  defining  precisely  llic  line  which  may  not  be 
overMfepped.  has  the  ativantage  of  simplicity.   I.nl    is  liable   In 

«"  ni«i...i.*M    x..«    fr;ii.;i..i    i.aw.       'n  liiackHtdm- i  v,  kk;. 

I,  J- 


j;  29  RESTRAINT.  25 

unequal  and  perhaps  arbitrary  administration.  In  view  of  the 
difficulty  of  enforcing  penal  legislation,  prosecution  is  apt  to 
be  confined  to  extreme  cases;  but  on  principle  the  question 
whether  such  legislation  is  constitutionally  admissible,  is  im- 
portant. The  question  has  received  hardly  any  consideration, 
and  the  validity  of  the  laAv  of  common  nuisance  and  con- 
spiracy, being  part  of  the  common  law,  is  generally  assumed. 
It  has  been  held  in  Kentucky  that  a  law  which  makes  it  an 
offense  to  charge  an  unreasonable  price  is  imconstitutional 
as  leaving  the  criminality  of  the  act  to  the  view  of  the  jury 
in  each  particular  case  of  what  is  reasonable.^-  The  principle 
of  the  decision  would  also  defeat  the  legislation  against  mi- 
reasonable  restraint  of  trade.  It  cannot  be  maintained  that 
this  principle  is  part  of  the  general  American  constitutional 
law :  but  it  seems  to  be  in  accordance  with  sound  legislative 
policy,  that  the  exercise  of  a  right  intrinsically  useful  and 
indispensable  should  not  become  criminal  by  overstepping  a 
line  Avhich  the  law  refuses  to  define  and  which  is  not  defined 
by  custom.  The  same  policy  is,  however,  unobjectionable 
where  the  conduct  which  is  carried  to  excess  rests  merely  on 
license,  and  is  not  in  its  moderate  form  socially  or  economically 
indispensable,  or  Avhere  custom  assigns  a  limit  to  the  exercise 
of  a  right.  This  observation  applies  to  many  forms  of  nui- 
sance, disorderly  conduct,  and  indecency,  in  which  the  act 
tolerated  either  is  not  a  matter  of  right  or  serves  no  useful 
purpose,  and  in  which  therefore  the  peril  of  going  beyond  the 
proper  limits  may  justly  be  thrown  upon  the  individual. 

POSITIVE  STANDARDS  AND   LIMITATIONS.     §29-34. 

§  29.  General  principle.— The  common  law  of  nuisance 
deals  with  nearly  all  the  more  serious  or  flagrant  violations  of 
the  interests  which  the  police  power  protects,  but  it  deals  with 
evils  only  after  they  have  come  into  existence,  and  it  leaves 
the  determination  of  what  is  evil  very  largely  to  the  particular 
circumstances  of  each  case. 

The  police  power  endeavors  to  prevent  evil  by  checking  the 
tendency  toAvard  it,  and  it  seeks  to  place  a  margin  of  safety 
between  that  which  is  permitted  and  that  which  is  .sure  to 
lead  to  injury  or  loss.     This  can  be  accomplished  to  some  ex- 

•"•i  Louisville    &    N.    R.    R.    Co.    v.  Commonwealth,  99  Ky.  ISi',  33  L.  R. 
A.  209. 


26  METHODS  OF  THE  POLICE  POWER.  §  30 

teut  by  establishing  positive  staudards  and  liniitatious  wliieli 
must  be  observed,  although  to  step  beyond  them  would  not 
necessarily  create  a  nuisance  at  common  laAV. 

This  policy  finds  expression  in  standards  of  purity  of  food 
and  of  other  commodities,  in  building  regulations,  safety  and 
health  requirements  for  factories,  ships  and  mines,  in  the 
creation  of  districts  for  offensive  establishments,  in  the  limita- 
tion of  hours  of  labor,  and  in  tariffs  of  charges. -^^ 

The  certainty  which  this  system  produces  is  in  many  res])ects 
a  benefit,  for  it  eliminates  disputes  as  to  intrinsically  doubtful 
facts,  as  e.  g..  whether  an  establishment  is  unwholesome,  or 
wlu'ther  charges  are  unreasonable ;  but  on  the  other  hand  it 
necessarily  involves  some  degree  of  arbitrariness,  and  must  not 
be  carriiMl  to  unreasonable  lengths. 

ii  30.  Imposed  standards  as  compared  with  customary 
standards.  — Often.  liDwcvrr,  llir  jxjsitivc  limitations  set  by  law 
remain  wrll  witliin  llie  customai-y  business  or  social  stand- 
ards. So  the  limit  of  \hv  lawful  rate  of  interest  is  always 
above  the  mai-kft  rate,  r.-iilrnjid  passenger  tariffs  set  by  law 
do  not  fall  bdnw  the  usu;il  charges,  the  hours  of  labor  for 
wonnui  limiti'd  by  l;iw  arc  rarely  exceeded  in  states  where  no 
sui-h  laws  cxi.st,  and  it  has  been  shown  that  the  recpiired 
purity  of  milk'  is  below  the  average  of  the  eonnnercial  stand- 
ard.'" Wliei'e  lln-  legislative  limitation  Irenched  upon  pre- 
vailing usage  the  cdurts  Iiavi'  not  always  felt  honnd  by  it; 
so  ill  the  case  ol'  reiluetion  uf  hours  to  eight-'^'  and  rharges 
reduced  below  tin-  point  of  pi-olil  ahleness  ai-e  treated  as  a  tak- 
ing of  property. 

§  31.  Regulations  applied  to  innocuous  conditions.  — The 
|)ositive  cliaraeti'i-  of  jMdice  re;iiilati<»ns  is  show  n  in  many  otlier 
things  besides  standards  and   liiiiifat  ions.      Whcicvei'  the  (diar- 

acter   ol    a    iiieasui'<-    is    p? autionary    it    n|iri'ales    on    pei'sons. 

tilings  or  i-onditious  no  matter  whilhiT  in  cveiy  individual 
cHHc  tin-  pri'cautifui  is  iiecessarv  or  not.  The  |)iiiiei|tle  is  that 
where   a   nieaHure   c(»uld    not    b.-   mroreed    withoul    nnifonnity, 

•i'»  Tin-  |»(iwiT  to  CHtahliHli  l>niiii"l;ir_v  v.    Si.    Louis    (oiiiity    t 'onimiHsioncrs, 

linen    of    IuikIn    whii'li    Imvr    Iktoiiic  (!;"   Minn.   mO;    'M  T>.   I{.   A.    C?!'. 
unrcrtniii   in  niinlo|;niiN;   licrr-  Hk    <!<•  :i' <  li;,!,;,,    Mmii,-ip:i|   S;iiiit:iti(>ii,   |». 

flriitioii    Miimi    of    lonrm-    vary    with  1^71. 

'  " 'i    |.;irli.  iilnr    ciiw,    tluTcforc,    no-  •i'-  Low    v.    |{c<-h    Piintiiijr    (;„.,    ^l 

iiwl   hniriiiK  in  rc<|iiirc<l.      |)avi«  Xoii.   l'J7;   Kifcliic  v.    I'.n|)l(.,   ir>r)  \\l. 

5)8;    I,'.-    M..rjrji„,  L'li  ('..1,    M.''). 


tc"Q9  EEGULATlUN.  o 


the  individual  interest  must  yield  to  this  ixM^uiremeut.  Thus 
in  case  of  vaccination  it  would  not  be  possible  to  inquire  or 
discover  whether  each  child  vaccinated  was  predisposed  to 
ward  snuiU-pox.  Where  a  board  of  health  required  that  certain 
articles  should  be  disinfected  at  the  expense  of  the  owner,  it 
was  not  competent  for  an  OAvner  to  show  that  his  goods  d;<: 
not  require  disinfection.  The  danger  being  general  a  measure 
would  be  defeated  in  its  beneficial  eifect,  if  the  question  of  ils 
necessity  could  be  raised  in  each  particular  case.-*''' 

§32.  Standards  of  articles  of  consumption.-''— Some  eoui-t-j 
have  said  that  the  legislative  determination  that  some  sul)- 
stance  or  mixture  is  intoxicating  or  unwholesome  is  conclu- 
sive.^^^^  But  such  a  statement  cannot  be  accepted  without  (puili- 
fication.  Alcohol  is  as  a  matter  of  fact  intoxicating  if  taken 
in  suficient  quantity.  To  cut  off  controversies  as  to  the  intoxi- 
cating quality  of  different  kinds  of  drinks,-"^*'  the  legislature 
may  define  as  intoxicating  all  liquors  containing  a  certain  i)er- 
centage  of  alcohol.  If  such  liquors  when  consumed  to  execs'^ 
produce  in  normal  eases  intoxication,  they  are  very  properly 
described  as  intoxicating,  although  they  may  not  have  that 
effect  in  each  particular  case.  Where  the  alcohol  is  so  much 
diluted  as  to  be  harmless,  a  legislative  fiat  will  not  make  it 
intoxicating.  But  if  the  legislature  for  the  purpose  of  pre- 
venting evasion  or  in  order  that  an  appetite  for  stronger 
liquors  may  not  be  fostered,^"  deems  it  wise  or  necessary  to 
forbid  any  alcoholic  admixture,  it  may  do  so  since  it  thereby 
interferes  at  most  with  the  gratification  of  a  pleasure.  So 
the  standard  of  pure  milk  may  be  so  fixed  as  to  exclude  th<' 
addition  of  water  or  coloring  matter-*^  and  it  may  be  for])id(U'n 
to  sell  cream  as  such  which  contains  less  than  20  per  cent  fat.'- 
If  a  considerable  admixture  of  l)oracic  acid  to  milk  tends  to 

ae  Train     v.     Boston     Disinfecting  drink  is  intoxicating  is  ordinarily  :i 

Company.   144  Mass.   523;    11  N.   E.  question    of    fact.       Topoka     v.    7.\\- 

9:j9,  1887.     Conipaguie  Fraucaise  v.  fall,  40  Kan.  47;  1  L.  R.  A.  387. 

Louisiana    State    Board    of    Health,  4o  state  v.  Guinness,  16  R.  1.  4(i I. 

186  U.  S.   380.  *i  Commw.  v.  Wetherbee,  153  Ma^•s. 

"See   also    §§274-286.  159;     26    X.    E.    414;     Commw.    v. 

38  State  V.  Intoxicating  Liquors,  Schaft'ner,  146  Mass.  512;  16  X.  K. 
76   la.   243;    2   L.   R.   A.   408,    1S88;  280. 

State  V.  Campbell,  64  X.  H.  402,  13         -i^i  State  v.  Crescent  Creamery  C.., 
Atl.  585.  83  Minn.  284 ;  ,54  L.  R.  A.  466. 

39  The      question      whether      some 


28  ^lETHODS  OF  THE  POLICE  POWER.  §  32 

injure  health,  it  is  legitimate  for  the  legislature  to  determine 
the  quantity  that  may  be  added,  but  if  a  slight  admixture  is 
not  only  perfectly  harmless  but  positively  useful  in  keeping 
milk  from  spoiling,  the  absolute  prohibition  should  be  re- 
garded as  exceeding  the  just  limits  of  the  police  power.  This 
is  the  view  taken  in  New  York.-*^  In  Massachusetts  where  the 
absolute  prohibition  was  upheld,  this  point  Avas  not  noted,-*-* 
while  ill  Iowa  the  legislative  power  in  this  respect  was  held  to 
be  absolute.-*^  In  ^Missouri  the  prohibition  against  the  use 
of  alum  in  baking  powder  was  sustained,  the  court  refusing, 
in  the  face  of  conflicting  testimony,  to  take  judicial  notice  of 
the  fact  that  alum  is  innocuous.^*'  The  regulation  of  food 
stufts  or  other  articles  of  consumption  has  for  its  object  the 
protection  of  health  or  the  prevention  of  fraud.  The  latter 
purpose  requires  a  wider  power  than  the  former,  and  the 
courts  go  very  far  in  supporting  the  principle  of  positive  regu- 
lation. That  direct  imitation  may  be  forbidden  has  been  con- 
ceded in  all  decisions  on  oleomargarine  legislation.  The  Court 
of  Appeals  of  New  York  has  moreover  held  that  the  legis- 
lature may  not  only  prohibit  the  coloring  of  distilled  vinegar 
in  imitation  of  cider  vinegar  but  may  forbid  the  addition  of 
any  foreign  coloring  matter  whatever.-*"  So  long  as  the  color- 
ing serves  no  useful  purpose  such  a  regulation  remains  within 
the  bounds  of  Avhat  is  legitimate,  for,  as  the  New  York  court 
points  out.  it  tends  1o  cliiuiiiale  difficult  questions  of  fact  by  a 
general  rule.  In  Ohio  it  has,  however,  ])ei'n  held  that  coloring 
matter  may  not  even  be  added,  though  it  gives  aroma  and  fla- 
vor.'"* In  New  Jersey  it  had  been  held  that  the  ]irohibition  of 
coloring  matter  in  oleomargarine  does  not  exclude  the  use  of  a 
substantial  ingredient  like  cotton  seed  oil.  though  it  does 
color;'"  and  the  Ohio  court  makes,  a  distinction  between  ingre- 
dients wliieli  ;ii('  substantini  and  tliose  which  are  not  ;  it  would 
perha[)s  be  better  to  say  that  nolliiiig  of  iiit  rinr,lc,  viilue  may  be 


<-i  Ppoplc   V.    MirHi'ckiT.    !()!»    \.    V.  1(1.-);    :5!l    X.    K.    SU:{.      Tliiit    cil.uinj,' 

M;  61  N.  K.  mxi;  r»7  I,.  I{.  A.  17S.  whicli    (h.oH    not    (IcfciiniMir    ,,r    ,„ii- 

<*  Coniniw.    V.    Oor.Ion,    \r,<)    Maws,  ((al    dclcrioralioii    is    not    in    il.solf 

H;  .71  N.  K.  701».  adulteration,     see     Pcoplo     v.     Jon- 

«a.HtHt«'    V.    Hrlilr-nkcr.     II'J     Iowa  iiinRH    (Mich.).   04   N.  W.   216. 

lii-2;  r,]   ]..  H.  A.  :517.  tsWcilpr  v.  State,  5.3  Oli.  SI.   77; 

<"  Stulr  V.   Layton,   100    Mo.  471;  !<>    X.    K.   1001. 

♦'»!   H    W.   171.  i''Ainrnon    \.    Xcwion,   .^O    N.  .] .   L. 

•Jininl,    II.-.    x.    y.  ni;}. 


§  33  EEGULATION.  29 

f'or])idden  unless  the  primary  purpose  is  to  imitate  and  de- 
fraud.^*^  In  the  Ohio  ease  the  foreign  substance  had  as  a  mat- 
ter of  fact  been  added  in  order  to  give  a  misleading  color. 

Upon  principle  the  power  of  regulation  should  allow  the 
setting  of  positive  standards  and  limitations,  provided  they 
are  not  carried  beyond  what  is  reasonably  calculated  to  pre- 
vent evasions  and  to  avoid  difficult  controversies  as  to  facts, 
and  provided  they  are  not  so  fixed  as  to  prohibit  practices 
which  are  both  clearly  harmless  and  positively  useful. 

§  33.  Regulation  by  municipal  authority.— It  is  generally 
held  that  a  positive  limitation  by  municipal  authority  is  iiot 
conclusive,  but  may  be  shown  to  be  unreasonable.  The  courts 
have  especially  refused  to  recognise  in  a  number  of  cases  terri- 
torial limitations  for  off;ensive  establishments  and  employ- 
ments."^  A  strict  view  of  the  power  of  municipal  corporations 
is  also  taken  in  England.^-  AVhere  the  indictment  is  under  the 
general  criminal  law,  proof  of  actual  nuisance  is  properly  in- 
sisted upon.^^ 

On  the  other  hand  so  far  reaching  a  limitation  by  municipal 
ordinance  as  the  establishment  of  fire  limits  within  which 
wooden  buildings  may  not  be  erected,  has  been  upheld  in  the 
majority  of  jurisdictions.-'^^ 

Where  the  law  authorises  cities  to  confine  the  places  where 
sales  of  intoxicating  liquor  may  be  made  to  the  business  por- 
tion of  the  city,  the  city  may  by  ordinance  declare  what  shall 
constitute  the  business  portion  of  the  city,  bounding  it  by 
designated  streets  and  avenues.  Such  declaration  is  at  least 
prima  facie  binding,  although  evidence  may  be  admissible  to 
the  effect  that  the  declaration  is  wrong  as  a  matter  of  fact.'^'^ 

The  Supreme  Court  of  Illinois  has  laid  down  a  three-fold 


50  People  V.  Biesecker,   169  N.  Y.  52  Addison    on    Torts,   54. 

53;  61  N.  E.  990;  57  L.  E.  A.  178.  ss  State  v.  Edens,  85  N.  C.  522. 

51  As  to  hospitals,  Bessonies  v.  54  See  §  141,  infra. 
Indianapolis,  71  Ind.  189;  as  to  sr. -Rowland  v.  Greencastle,  157 
cemeteries.  Lake  View  v.  Letz,  44  Tnd.  707;  62  N.  E.  474,  modifying 
111.  81;  as  to  keeping  animals.  Ark-  on  rehearing  an  earlier  decision  in 
adelphia  v.  Clark,  52  Ark.  23;  ex  the  same  case  in  which  it  had  been 
parte  O 'Leary,  65  Miss.  80;  as  to  held  that  the  city  had  to  prove  in 
slaughter  houses,  Wreford  v.  People,  every  case  that  the  place  was  lo- 
14  Mich.  41.  See  as  to  this  §§  177-  cated  in  the  residence  portion.  See 
179,  infra.  58  N.  E.  1031. 


3Q  METHODS  OF  THE  POLICE  POWER.  j^    :]4 

classitieation  of  nuisances  for  the  purpose  of  determining  the 
extent  of  municipal  power  to  declare  nuisances:  1.  those 
which  are  nuisances  per  Si\  denounced  as  such  by  connuon  law 
or  statute ;  2.  those  which  in  their  nature  are  not  nuisances  but 
may  become  such  by  reason  of  locality  or  management ;  3.  those 
which  in  their  nature  may  be  imisances  but  as  to  which  there 
may  be  honest  differences  of  opinion  in  impartial  minds.  As  to 
1  and  3  the  municipal  declaration  is  conclusive,  but  as  to  2  the 
municipal  power  is  confined  to  such  as  are  nuisances  in  fact."''' 

^  34.  Choice  between  measures  of  equal  efficiency.— Assum- 
ing that  several  measures  are  equally  efficient  to  avert  dan- 
ger In  Ilea  It  li  or  safety,  it  would  still  seem  to  be  within  the 
legislative  power  to  select  one  method  and  require  its  adoption, 
for  it  is  easier  to  enforce  uniform  police  regulations  than  a 
great  variety  of  measures,  the  efficiency  of  each  of  which  would 
be  a  (juestion  of  fact  in  each  particular  case.^*^  The  limit  of 
legislative  power  in  this  respect  is  that  it  may  not  prescribe 
the  use  of  a  method  or  article  which  can  be  jirocured  onl}^  from 
one  source  of  supplies,  since  this  would  create  a  monopoly.^** 
A  certain  (juality  may  be  prescribed,  but  it  must  not  be  assumed 
that  only  (»iil'  produce)-  or  manufacturer  satisfies  the  required 
standard.  Where  a  i-egulation  proceeds  from  an  administrative 
board,  however,  lln'  pnwii-  delegated  to  it  often  does  not  extend 
to  prescribing  one  particular  method,  but  it  is  sufficient  if  the 
object  whicli  tlic  I)oaivl  is  to  secure  is  accomjilishcd  by  the 
indiviilual  owner  in  some  way.-''^  Compliance  with  the  I'cgula- 
tion  then   protects  the  owner   li-oiii  pi-osecution ;  if  he  selects 

6"  UiuKcl  V.  MiisImkII,  11>7  Jll.  i20;  front   part   of   the  lot,    tlie   measure 

63  N.  E.  10H(5;  .IH  I,.  H.  A.  li(>().  .•viilontly  also  serves  tlio  imrposo  of 

"•7  WhtTc    tiiiH    roiisiflcratidii    docs  w  iilciiiiiff    tiic    jjiihlic    strcH't    witliout 

licit     enter,     it     is     ilifliciiit      to     say  cxj>ensc.      l'i'ili;i|is   tliis   lu.iy    be  sus- 

whether  the  le^^iHhitiire  may  parliiii-  taiiKMJ   wlicrc   iirivalo   rigiit.s  are   not 

hirize  ifH  ini'iiHiireH  «o  as  to  ))r('jinlic(?  materially    prejndiceil,    ;is    a    rofjula- 

•  if    iH-ollcHMly    injure    private    rijjlils.  tion  of  llie  nse  of  I  lie  property,  htit 

I'erhapN  the  coiirtH  miyht  control  tlie  see  St.   I.oiiis  v.   Hill.    I  Hi   Mo.  .")Ll7. 

re<|iiirement    if   it  eoulil    lie   made   to  '^  Slate   v.    Hantee,    111     In.    1;    ")'.] 

nppeiir    that     the    parlicnhir    ciioiee  L.  U.  A.  Td.'i. 

i«iilm«'rveil    nlterior   pnrpoMeH.     So   tlic!  f'»  Morfonl  v.  Board  ul    lle.illli,  (11 

Inw   ttiiiy  (iroliihit    that    tlie  Imildinj,'  N.  .1.  Ti.  3S0,  IHOS;    \V:iiii|>|i,i  Reser- 

hil     Im'    eovered     with     Itiiildiii^K     to  voir  Co.  v.  Mackenzie,   l',\'2  Mass.  71; 

more    than    four  flfthH    of    itH    area;  Sihoeii    v.    Athinta.    '.)7    Ca.    697;    33 

Imt   if  the  one-fifth  or  |iart  of  it   Ih  I  .  U.  A.  804,  (applied  to  ordinance). 
rur|iiired    to    Iw    h-ff    vacant    in    the 


j;  ;{5  PREVENTIVE   REGULATION.  31 

his  own  method  he  takes  tlie  risk  of  creatinjr  or  continiiinfr  a 
nuisance,  hnt  the  mere  departure  from  tli<^  official  |)ian  is  no 
offense. 

It  cannot  Ije  left  to  an  administrative  officer  to  determine 
conclusively  the  existence  of  a  danger  and  the  choice  of  meas- 
ures to  be  taken  against  it,  since  that  would  hivolve  an  uncon- 
stitutional delegation  of  legislative  power.^"  It  seems,  how- 
ever, that  this  objection  may  be  avoided  by  interpreting  the 
delegation  of  power  as  vesting  the  administrative  officer  merely 
with  a  discretion  in  requiring  usual  and  appropriate  safe- 
guards against  a  danger,  subject  to  judicial  control  as  to  the 
existence  of  the  danger  and  the  reasonableness  of  the  relief. 
Such  delegation  of  powers  is  certainly  in  accordance  with  legis- 
lative practice,  so  especially  in  dealing  with  a  danger  of  epi- 
demic disease.®^ 

EEGULATIONS  TO  INSURE   COMPLIANCE  WITH   LAW.     §35-57. 

§  35.  Prevention  through  publicity.— Among  the  positive  re- 
quirements of  the  police  power  the  measures  securing  publicity 
and  notice  in  matters  subject  to  restraint  or  regulation,  deserve 
special  mention.  The  power  of  police  regulation  finds  its  sanc- 
tion generally  in  a  penalty  affixed  to  every  violation,  which 
penalty  consists  in  fine  or  imprisonment  or  both.  The  infliction 
of  the  penalty  belongs  to  the  criminal  courts,  and  concerns  the 
police  powder  mainly  as  an  indirect  means  of  securing  compli- 
ance. The  object  of  the  police  power  is,  however,  emphatically 
prevention  of  mischief  and  danger,  and  hence  prevention  of 
violations  of  its  rules,  and  it  will  therefore  naturally  resort  to 
such  subsidiary  means  of  control  and  restraint  as  will  tend  to 
insure  compliance  with  the  regulation  in  the  first  instance. 
These  subsidiary  means  are  therefore  common  features  of  police 
•legislation.  The  principal  forms  are :  license  and  security,  no- 
tices and  signs,  and  reports  and  registration.  In  their  turn 
they  can  be  enforced  only  by  resorting  to  criminal,  civil  or 
administrative  proceedings;  but  if  properly  selected,  compli- 

"o  Schaezlein  v.  Cabaniss,  135  Cal.  power    to    fix    stamlards    of    purity 

466;  67  Pac.  755.  of    food    is    upheld    in    Isenhour    v. 

'!i  So  also  in  the  matter  of  fire  es-  State,    157   Ind.   517;    62   N.   E.   40. 

capes     to    be    placed     on     tenement  The  general  subject  of  the  validity 

houses,  Arms  v.  Aver,  192  111.  601;  of   delefration    of   legislative   powers 

61    N.    E.    851.     The    delegation    to  is    not     within    the    scope    of    this 

the   State  Board   of   Health   of  the  treatise. 


32  METHODS  OF  THE  POLICE  POWEK.  j:  S6 

ance  with  them  is  more  easily  seciiivd  than  the  accomi)li^huiiMit 
of  the  ultimate  object  without  them,  and  their  operation  will 
in  many  instances  determine  the  success  or  failure  of  regulative 
legislation. 

Measures  securing  publicity  are  especially  valuable  and  may 
often  be  relied  upon  to  bring  about  the  desired  standard  of 
private  action  without  prescribing  that  standard  in  jiositive 
terms.  Many  practices  cannot  stand  the  light  of  publicity,  and 
will  be  abandoned  voluntarily,  or  under  the  stress  of  public 
opinion,  if  secrecy  is  impossible.  The  requirement  of  publicity 
is  now  generally  advocated  as  the  most  effectual  means  of  deal- 
ing with  the  abuses  of  monopolies,  both  restraint  and  regula- 
tion having  proved  unsuccessful.  Under  such  policy  compul- 
sion may  still  be  necessary  to  secure  information  through  re- 
ports or  testimony,  but  otherwise  administrative  action  will 
consist  largely  in  supervision,  advice,  and  the  collection  and 
publication  of  statistics.  The  history  of  the  IMassachusetts 
Railroad  Commission  is  often  pointed  to  as  an  example  of  a 
successful  policy  of  this  kind.*''^  About  one-half  of  the  states 
liaving  railroad  commissions  confine  their  powers  to  super- 
vision without  regulation.*'^ 

LICENSES.     §  36-39. 

i;  36.  Licenses  or  permits  are  administrative  acts  authoriz- 
ing th<'  doing  of  a  thing  which  is  subject  to  police  regulation 
or  restraint.  Tlie  license  or  i)fi-iiiit  is  given  if  the  proper  au- 
thr)rity  is  satisfied  tliat  the  imposed  regulations  have  been  or 
will  be  complied  wilh.  The  steps  to  be  taken  before  the  licenst^ 
i.s  issued  iire  prescribed  l\v  statute  or  onlinance.  .V  typical 
oa.se  is  tliiit  <A'  a  building  pi-rmil,  wliieh  is  issued  after  the 
builder  has  filed  phins  showing  that  the  building  rt^gnlatijus 
will  be  complit'd  with.  Tlic  |»i"e])aration  of  the  ])l;iiis  gives 
prima  fjieie  n.ssiiranec  tlmt  they  will  be  carried  out.  ;ni(l  the 
«'onHtruetion  of  a  bnilding  without  a  j)ermit  is  eleai'ly  an  illegal 
act  nnd  can  be  stopped  at  once.  Where  no  element  ol"  p(M'sonal 
fliHcrimination  enters  into  the  re«.rnlati(Mis.  and  the  license  is 
iMHued  as  n  matter  (if  course  upon  |)erformance  of  the  ])r(^- 
Mcribed  steps,  and  upon  pavincnt  of  a  fee  sufflciciit  to  coyer  ncc- 

•>' Hadlcy      Kuilroa<l      TrnnHport:i-  '>•' HtimHon   Atncricnn   Statute  Tiniv 

'       ■    '"n.  J],  h.-jzl'.  Hr,7c>,  s.ssa. 


37 


LI(JEi\8KH. 


essary  administrative  expenses,  there  can  be  hardly  any 
question  as  to  the  legality  of  this  form  of  control."^  If  tiif 
regulations  involve  considerations  of  personal  qualification,  the 
principle  of  equality  comes  into  play,  and  licenses  of  this  nature 
will  be  discussed  later  on.°^ 

§  37.  License  or  occupation  tax.— Often,  however,  the  license 
bears  no  relation  to  regulation  or  supervision,  and  is  imposed  as 
a  source  of  revenue,  being  in  reality  a  tax  called  license  or 
occupation  tax.  For  the  purpose  of  determining  whether  cer- 
tain constitutional  provisions  regarding  taxation  are  applica- 
ble, or  whether  a  municipal  corporation  under  its  charter  may 
impose  license  fees,  it  becomes  in  many  cases  important  to  dis- 
tinguish the  license  as  a  police  measure  from  the  license  as  a 
revenue  measure.^^  That  a  revenue  is  produced  above  the  ex- 
penses of  supervision,  and  that  this  result  was  contemplated, 


64  Com.  V.  Plaisted,  148  Mass. 
375. 

65  See  §§  639-655,  infra. 

66  The  distinction  between  a  li- 
cense and  a  tax  is  illustrated  by  the 
liquor  legislation  of  Ohio.  The  con- 
stitution of  1851  provides  that  "no 
license  to  traffic  in  intoxicating 
liquors  shall  hereafter  be  granted  in 
this  state,  but  the  General  Assembly 
may,  by  law,  provide  gainst  the  evils 
resulting  therefrom. ' '  The  earlier 
license  laws  were  expressly  repealed 
in  1854,  and  under  very  considerable 
restrictions  any  one  had  the  right 
to  engage  in  the  traffic.  By  act 
passed  in  1882  (Pond  law)  the  right 
to  sell  liquor  was  made  dependent 
upon  the  payment  of  a  tax  and  the 
execution  of  a  bond;  default  in  pay- 
ment of  the  tax  was  to  forfeit  the 
bond,  and  to  engage  in  the  traffic 
without  the  bond  was  made  a  mis- 
demeanor. This  law  was  held  to  be 
a  stringent  prohibitory  law  as  to 
those  failing  to  comply  with  its 
terms,  hence  as  to  those  complying 
with  the  act  a  license  law  in  the 
sense  of  the  constitution  and  there- 
fore     unconstitutional.       (State      v. 

3 


Hipp,  38  Oh.  St.  199.)  Another  act 
(Scott  law)  was  thereupon  passed 
in  1883,  which  likewise  imposed  -a 
tax  upon  the  business.  The  tax  was 
made  a  lien  upon  the  real  property 
on  which  the  business  was  carried 
on,  and  it  was  made  a  misdemeanor 
to  engage  in  the  business  without 
the  consent  of  the  owner  of  the 
property.  This  latter  feature  was 
held  to  vest  in  the  owner  of  the  prop- 
erty the  power  to  license  or  forbid 
the  traffic,  and  hence  obnoxious  to 
the  constitutional  provision, — a  some- 
what remarkable  interpretation  of 
the  act,  or  of  the  term  license.  The 
whole  act  was  in  consequence  de- 
clared unconstitutional  (State  v. 
Sinks,  42  Oh.  St.  345.)  This  decis- 
ion led  to  the  enactment  of  the  Dow 
law  of  1886,  which  imposed  a  tax 
and  makes  it  a  lien  upon  the  real 
property  on  and  in  which  the  busi- 
ness is  conducted,  but  omits  the 
provision  requiring  as  a  matter  of 
law  the  consent  of  the  owner,  al- 
though of  course  in  view  of  the  lien 
clause  his  consent  will  as  a  matter 
of  fact  be  indispensable.  This  act 
was    upheld,    the    difficulty   which    a 


34 


METHODS  OF  THE  POLICE  POWKK. 


>^:I7 


..r  even  tluit  it  is  called  a  license  tax.  does  not  make  it  neces- 
sarily a  tax  if  in  reality  its  primary  purpose  is  to  restrain  and 
<-ontrol  a  dangerous  business.^'  The  revenue  may  be  a  means 
of  meeting  governmental  cliarges  created  or  increased  by  the 
l)usiness  which  is  placed  under  license.*^^  On  the  other  hand  it 
has  been  held  that  there  may  be  a  tax,  although  the  payment  is 
a  condition  precedent  to  the  right  to  carry  on  a  business, 
whereas  this  feature  is  normally  characteristic  of  a  police 
license.*'^  It  has  been  held  that  where  licenses  in  reality  are 
taxes  imposed  by  a  municipality,  the  right  or  license  to  carry 
on  the  occupation  being  derived  from  a  state  law.  a  penalty 
cannot  be  imposed  for  a  sale  without  a  license.""  In  the  case  of 
many  occupation  licenses,  it  is  impossible  or  unnecessary  to 
distinguish  between  the  regulative  and  the  financial  character 


jterson  not  owning  real  properly 
A\oul<l  experience  being  held  to  be 
merely  an  extraneous  impediment. 
(Adler  v.  Whitbei-k,  44  Oh.  St.  539; 
Anderson  v.  Brewster,  44  Oh.  8t. 
r,76).  While  it  is  perhaps  not  easy 
to  reeoncile  the  decision  under  the 
Dow  law  with  the  decision  under  the 
S4-<itt  law,  yet  the  distinction  bo- 
twjK-n  a  tax  and  a  license  is  quite 
ch-ar  under  the  Dow  law.  This  law 
dues  not  require  an  administrative 
net  of  any  kind  to  entitle  a  person  to 
nn(ja(;e  in  the  business,  nor  does  tlio 
non-payment  of  the  tax  make  the 
biiHinetiH  illejjal.  In  these  respects  it 
differH  from  the  New  York  liquor 
tax  law.  The  distiiimiishing  feature 
of  the  liecnsc  is  that  it  operates  as  a 
rondition  precedent  to  the  right  to 
enrry  on  the  ixisinoHs;  hence  where 
the  fax  in  not  a  condition  to  the  ex- 
i'friiKj  of  the  ri^ht,  it  is  not  a  license. 
Thin  wnn  nl»o  held  the  eHsential  point 
ir  II  MiehiKan  ntntutc  imposiuK  a 
tax  under  n  nincp  nbolinhcd  no- 
lir<>niH'  rlanne  in  th«'  r-oiiHtitution 
nimilar  to  thnf  of  Ohio.  (Young- 
blood  V.  Soxton,  3'-'  Mich.  406,  J87r..) 
•»  people    V.    Murray,    149    N,    Y. 

:ir.:.  imm. 


•'8  Baker  v.  Cincinnati,  11  Oh.  St. 
534. 

«n  Banta  v.  Chicago,  172  111.  204. 
"The  occupation  may  be  lawful 
in  itself  and  not  subject  to  pro- 
hibition or  regulation  by  the  state, 
yet  it  may  be  j)roliibited  iu  order  to 
compel  the  taking  out  of  a  license  if 
tlio  i)urpose  is  to  raise  revenue  by 
uH'ans  of  license  fees;"  citing 
Coolcy  Taxation,  p.  597;  also  State 
ex  rel  Auburn  School  District  v. 
Poyd,  63  Neb.  829;  58  L.  H.  A.  108; 
but  in  Ohio  and  ^lichigan  where  un- 
der the  constitution  the  licensing  of 
liquor  business  was  forbidden,  it  was 
I. ('Ill  tliiit  tlic  tax  was  distinguished 
from  I  ho  license  l\v  tiie  fact  hat  its 
nfui-payment  does  not  render  the 
biisiness  illegal,  ami  lliat  it  does  not 
ic(|uire  :i  preliminary  .iilmiiiistrative 
act  (o  alluw  a  person  to  eng;ige  in  il. 
(Sec   note  (5(5.) 

70  Robinson  v.  Mayor  of  I'ranklin. 
I  Hnmph.  (Tenn.)  156.  A  stalnte 
n-.jiy  |)unish  non-payment  by  a  line, 
though  the  license  is  regardeil  as  a 
tux.  Kosenbloom  v.  Slate  (Neb.)  H9 
X.   W.    1053,  57   h.    K.   A.  922,    1902. 


§  38  LICENSES.  -^5 

of  the  measure.' '  The  license  may  also  he  a  form  of  controULii«; 
the  payment  of  the  tax,  heinf;-  merely  incidental  to  the  revenue 
system,  and  furnishing'  no  j)Ositive  authority  to  carry  on  the 
husiness.'- 

§  38.  License  as  a  police  measiu'e.  — The  license  as  a  police 
nieasin-e  is  i)ro])ei'ly  only  an  incident  to  restraint  or  regulation 
and  should,  therefore,  not  be  upheld  where  there  is  no  power  to 
restrain.'^  Upon  this  principle  an  ordinance  imposins:  a  license 
fee  upon  the  owners  of  bicycles  was  declared  illegal  in  Illinois, 
the  court  holding  that  the  use  of  streets  for  private  vehicles  is 
as  much  a  matter  of  common  right  as  their  use  for  walking  on 
foot,  and  that  the  charter  power  to  regulate  the  use  of  streets 
cannot  be  made  the  foundation  for  a  restraint  upon  the  exer- 
cise of  common  rights  except  for  specific  purposes  of  order  or 
safety.  The  ordinary  use  of  the  wheel  was  held  to  justify  no 
restraint  upon  this  principle,  and  upon  this  theory  the  decision 
seems  sound;  for  it  would  not  he  maintained  that  a  license 
might  be  required  for  walking  on  the  streets."^  It  would  have 
been  different  had  there  been  a  charter  power  to  impose  license 
taxes  upon  all  vehicles."'''  A  license  has  also  been  held  to  be 
invalid  as  a  police  measure,  where  there  was  no  attempt  to 
regulate  the  business  which  was  made  subject  to  the  license.'" 

Discriminative  licenses  may  be  justified  by  the  conditions  of 
a  business ;  thus  it  has  been  held  that  a  municipal  corporation 
may  impose  a  license  fee  on  meat  shops  kept  outside  of  the 
public  market,  since  they  recpiire  special  supervision ;''  and 
licenses  may  be  graded  according  to  the  amount  of  business 
done."^ 

$  39.  High  license  as  a  method  of  restriction.— A  license 
may  also  serve  the  purpose  of  restraint  by  fixing  the  fees  so 
high  as  to  reduce  the  number  of  those  engaged  in  the  licensed 

■1  Bostou  V.  Seliaffer,  9  Pick.  41.1.  "'•State  v.   ^Joorc,   llo   X.   C.  GiC, 

"2  License  tax  cases,  5   Wall.  462.  but  in  that  case  the  license  was  pro- 

""  Bessonies     v.     Indianapolis,     71  hibitivc,  and  it  seems  that  as  to  the 

Ind.   1899.     See  also  Sluiman  v.  Ft.  point  of  the  license  being  invalid  as 

Wayne,   127   Ind.   109;    11   L.   R.   A.  a  police  regulation  the  case  is  over- 

378.  ruled  by   State   v.   Hunt,   129   X.   C 

-*  Chicago  V.  Collins,  17.5  111.  445;  686,  40  S.  E.  216. 

51  N.  E.  907,  1898.  "Ash  v.  the  People,  11  Mich.  347. 

"5  Tomlinson    v.    Indianapolis,    144  "«  People  v.   Thurber,    13   III.   554. 

Ind.  142;  36  L.  R.  A.  413;  Ft.  Smith  Timm  v.  Harrison,  109  III.  593;  Sac- 

V.  Scruggs  (Ark.)  ;  58  L.  R.  A.  921.  nimento  v.  Crocker,  16  Cal.  119. 


3(j  METH(,)L)S  OK  THE  rOT.ICK  rowKi;.  ^   40 

business.  The  restraint  of  the  liquor  business  by  high  license 
is  conspicuous  as  an  illustration  of  this.  Even  a  municipal  cor- 
poration may  lix  licenses  with  that  end  in  view.'-'  High 
license  atfords  a  convenient  method  of  restricting-  numbers 
Avithout  discriminating  between  persons;  this  is  the  policy  of 
the  present  excise  law  of  the  state  of  New  York."*," 

Where  business  is  of  such  a  character  as  to  induce  or  facili- 
tate fraud,  high  licenses  have  been  upheld  though  admittedly 
oppressive  in  their  operation;  so  a  license  required  of  itinerant 
merchants,  of  $25.00  a  month  in  each  town  in  which  the  business 
is  carried  on;^i  but  a  license  of  similar  amount  was  held  void, 
because  unreasonable,  where  it  was  imposed  by  ;i  munici- 
pal ity.'*^ 

Licenses  of  a  prohibitive  amount  should  be  treated  as  a  pro- 
hiliition  of  the  business  affected,  and  will  he  discussed  under 
that  head. 

5;  40.  Bonds  and  deposits.  — Somewhat  related  to  the  re- 
qiiiri'iiirni  of  a  license  is  that  of  a  bond  or  de])osit  to  secure 
the  faithful  compliance  with  ]iolice  r(\uulations,  and  the  satis- 
faction of  liabililies  that  ni;i\-  ai'ist'  from  their  violation,  or  to 
servo  as  an  indemnity  fund  i'i»r  persons  who  have  suffered  by 
the  fraudulent  conduct  of  the  business.  As  a  subsidiary  meas- 
ure of  police  control  it  appears  to  be  pei'niissil)le  wliei-evei-  a 
license  nia\-  bi-  rr(|uired,  but  it  is  resorted  to  Irss  frequently. 
,\  bond  is  i-e(|uired  not  uncommnnly  of  li{|uor  sellers  and  of 
auctioneers;  deposits  are  sometimes  rccpiired  of  peildlers, 
ititierant  merehants,  of  persons  advertising  baidvrui)t  sales, 
abovf  all  of  j)t'rsons  or  corporations  engaged  in  the  (luasi-i)ublic 
busines-s  of  bunking,  insurance,  or  \va rehousing.^-' 

NOTirKS.    MMv'KS    AND    SKiXS. 

^4.1.      ('i-rtain    forms   of   notice   .-ind    pniilicity    (lireetl\'   pro- 
iiioti-  public  order  and  convenience,  and  may  be  tlierelore  i"e- 
«piircd  without  ulterior  |Mirpose;  so  the  alVixing  (»!'  sti-ect   iinni 
hern    to    houses.      Sncli    ;i    fcgidiit  inn    is    un<picst  ioned,    except 

^w  honnohy    v.     ("Iiifajfri,     I'Jfl     ill.  "'- Sl.-itc  ex  rcl  Mincos  v.  SclKicnijV, 

6'J7;     Dninlh    v.     Kru|.|.,    W,     Minn.  71.'  Minn.  .^I'S;  7.'')  X.  W.  71 1,   1  siis. 
43r>;  Tpnn«7  v.  lAtn?..  1«  Wi».  nOK.  h'i  Wi^^inH  v.  ("hic-i^r,,,  cs   Ml.  :',7J; 

•«  IVojilc  Px    n-l    KinHfcM   v.    Mnr-  lla\vtli<irii    v.    I'c(.|ili'.    Ill'.t    111.    :?()'J ; 

rajr,  MH  N.  Y.  :WJ7.  IHIHJ.  8taf<-    v.     Haninirtun.    (iH     Vt.    (!"JL'; 

•«  8tnU'  V.  HarriiiKfon.  «W  Vt.  022.  ex   parte   MnHJiT,   s  Oh.   ('.  C.  :iL'4. 


§41  NOTICES,    MARKS,   AND    SIGNS.  37 

where  it  involves  a  disproportionate  expense.''^  As  a  rule, 
notices  and  sip:ns  serve  as  aids  to  other  regulations,  so  where, 
as  is  the  case  in  many  European  cities,  numbers  are  required 
for  bicycles,  in  ortler  to  hold  the  owner  to  a  stricter  observance; 
of  the  rules  regarding-  their  use.  It  is  a  matter  of  connnon 
experience,  that  violations  of  the  law  arc  coiunutted  secretly 
rather  than  openly,  and  the  facility  of  concealment  encourages 
illegality.  IMucli  is  therefore  gained  by  obtaining  publicity  and 
by  providing  some  means  of  information  by  wliich  violations 
can  be  readily  detected. 

Notices  may  also  be  required  in  order  to  advise  the  parties 
intended  to  be  benefited  by  a  regulation,  of  its  existence,  and 
thus  to  prevent  frauds,  misunderstandings,  and  disputes.  Thus 
the  Massachusetts  law  for  the  protection  of  women  and  minor 
employes  requires  that  every  employer  shall  post  in  a  con- 
spicuous place  in  every  room  where  such  persons  are  employed, 
a  printed  notice  stating  the  niunber  of  hours'  work  required  of 
them  on  each  day  of  the  week,  the  hours  of  commencing  and 
stopping  such  work,  and  the  hours  when  the  time  of  rest 
allowed  for  dinner  or  for  other  meals  begins  or  ends.^-^  The 
state  may  also  insist  upon  notice  as  a  protection  where  it  does 
not  otherAvise  regulate;  so,  in  New  York,  emigrants'  boarding 
houses  must  have  their  rates  posted:  in  Illinois,  employers, 
who  during  a  strike  wish  to  induce  workmen  to  come  from 
other  places,  must  advertise  the  fact  that  there  is  a  strike.^" 
The  requirement  that  railroad  companies  shall  post  their  rates 
is  therefore  not  a  regulation  of  interstate  commerce,  and  is 
valid  as  to  rates  of  traffic  between  several  states.^"  In  Ger- 
many, where  the  regulation  of  the  price  of  bread  has  been 
abandoned,  it  may  still  be  required  that  prices  be  posted,  and 
that  bread  be  sold  in  loaves  of  prescribed  Aveight.     For  the 

8*  Walker  v.  New  Orleans,  31  La.  tlio    registration    of    names    of    ves- 

Ann.    828.     The   wearing    of    license  sels  and  of  their  owners  was  held  to 

numbers    can    probably    be    required  be    a    regulation    of    commerce    and 

only  where  customary.    Atlantic  City  therefore  invalid  with  regard  to  ves- 

V.  Turner,  67  N.  J.  L.  .=520,  51  Atl.  sels     sailing     for     ports     of     other 

6pi_  states;     Sinnot     v.     Davenport,     22 

85  Acts  of  1894  ch.  ;10S,  §  11   Kov.  How.  227,  ISjiO.    The  court  referred 

Laws,  ch.  106,  §  23.  to  the  fact  that  enrollment  was  re- 

sc  Law  of  April  24,  1899.  quired      under      federal      legislation 

ST  C.  &  N.  W.  R.  Co.  V.  Fuller,  17  without  however  regarding  this  fact 

Wall.  560.     Yet    the   requirement    of  as  controlling. 


3g  MKTHODS  OF  THE  POLICE  POWEK.  §  42 

prevention  of  fraud  and  oppression,  publicity  and  notice  is  as 
a  rule  the  best  and  most  adequate  method  of  police  regulation. 

A  very  common  form  of  notice  consists  in  marks,  signs, 
labels,  or  stamps,  which  are  required  to  be  affixed  to  articles  of 
commerce  in  order  to  advise  the  public  of  their  true  nature. 
The  purpose  may  be  either  protection  against  danger  or  pre- 
vention of  frauil.  Sometimes  provisions  requiring  separate 
places  of  sale  are  added.  TIk'  jM-incipal  articles  thus  con- 
trolled are  poisons,  drugs,  and  food  preparations,  especially 
compounds  and  imitations.  Both  the  omission  to  mark  and 
false  marking  are  then  made  offenses.  The  validity  of  such 
rt'quircmt'nts.  as  long  as  they  are  reasonable  and  appropriate, 
••aiuiot  l)e  (juestioned.'^^ 

A  Texas  statute  nuiking  the  mixture  of  any  articles  of  food 
without  indicating  on  a  label  the  component  ingredients,  a 
pt*nal  ofVense.  was  held  to  be  unconstitutional  because  the  ad 
was  regarded  as  too  general  in  its  terms  and  hence  oppressive; 
it  was  recognised  that  the  requirement  with  regard  to  specific 
articles  would  be  valid.**"  It  caimot  be  admitted  tliaf  this  dis- 
tinction cinl)odics  a   Hxed  constitutional  priiici]-)le. 

KKPORT8    .\M)    1:K0ISTRATI0X.       §42-46. 

j  42.  In  general.  —  \V bile  the  chief  use  of  notices  and  signs 
is  to  advise  the  purchasing  public  of  the  character  of  merchan- 
dise nfVere<|  for  sale,  reports  and  I'egist i-at ion  serve  the  j)ur- 
pose  of  giving  information  to  public  authorities  to  enable  them 
to  take  nieusures  for  the  |n-oieetion  aAd  i'urtherance  of  the 
public  welfari'.  In  many  eases  both  pui'poses  are  combined: 
H(»  reports  niadr  hy  corporations  enable  the  state  to  su|)ef\ise 
their  action  and  |>laee  ereditoi-s  and  <»thers  in  a  position  to 
jud|/e  of  the  cjtmpany's  financial  condition.  We  speak  of  re- 
ftorts  where  infftrmatioji  is  given  periodically  or  wlienevei-  de- 
manded: registraticMi  is  very  often  in  the  nature  of  a  pre- 
liminary notice,  a  derdaralion  advising  the  authoi-ities  of  the 
exiHtene*'  of  some  fact,  such  as  the  estal)lislnnent  of  some  busi- 
ucHH,  giving  location,  name  of  owner  and   other  particulars."" 

••Htate  V.  Snow,  Ml   In.  rt4'J;   til,.  ■•■'  In  Ccniian.v  ll |HMiiri^  ,,f  j,„y 

R.  A.  .Tiri ;  Stnt«'  V.  Shoroft,  MO  Minn,      pjaic      of      l)\iHincss      ri'ijnires      .micli 

ua,  r.o  I,.  \i.  A.  rtOd.  n..i ;.■<;. 

••  Donwy   v.  Htnto.   38  Tex.  (rim. 
App.  527;  40  I,.  H.  A.  JOl. 


§  43  EEPORTS   AND   REGISTKATIUX.  39 

A  license  regularly  serves  at  the  same  time  the  purpose  of 
registration,  but  where  it  may  be  refused  or  is  connected  with 
the  payment  of  a  fee,  it  becomes  a  substantial  restraint  or  bur- 
den. The  freedom  of  assembly  was  recognised  in  France  by  a 
law  which  substitvited  for  the  re(iuirement  of  a  license  that  of  a 
preliminary  notice  to  the  police.^^ 

§  43.  As  applied  to  business.  — Reports  are  required  chiefly 
of  corporations  engaged  in  a  business  affected  with  a  public 
interest :  railroad,  insurance  and  banking  companies ;  to  a  less 
degree  of  other  corporations.  They  are  further  re(|uired  where 
some  condition  imminently  dangerous  to  life  or  property  calls 
for  measures  of  protection;  thus  sanitary  authorities  must  be 
notified  at  once  of  cases  of  contagious  disease,  and  certain  dis- 
eases of  animals  must  be  brought  to  the  notice  of  veterinary 
surgeons.  A  number  of  states  have  recently  enacted  statutes 
requiring  notice  of  the  inflammation  of  the  eyes  of  new-born 
infants.  Reports  are  also  required  of  businesses  placed  under 
supervision  because  facilitating  the  commission  of  crime  or 
affecting  public  morals.-  In  many  cases  registration  of  deal- 
ings, in  books  kept  by  the  dealer,  which  are  open  to  inspec- 
tion, is  suf^cient.  The  courts  have  gone  far  in  sustaining  such 
requirements.  Thus  the  Supreme  Court  of  Illinois  upheld  an 
ordinance  of  the  city  of  Chicago  which  provided  that  every 
pawnbroker  should  deliver  daily  to  the  superintendent  of  police 
a  book  showing  every  article  pledged  and  the  name  and  resi- 
dence of  the  pledger,  etc.'-'-  The  court  relied  upon  the  fact  that 
the  business  was  carried  on  under  revocable  license,  and  that 
the  city  had  charter  power  to  suppress  it  altogether;  the  con- 
ditions under  which  it  should  be  allowed  to  be  conducted  were 
therefore  held  to  be  entirely  Avithin  the  discretion  of  the  city 
council.  A  similar  decision  was  made  in  Missouri.^^  But  in  an 
earlier  Illinois  case  an  ordinance  requirement  that  druggists 
should  report  by  affidavit  all  sales  of  liquor  made  by  them  was 
held  unreasonable  and  void.^^  The  court  spoke  of  the  sanctity 
of  private  business  and  of  the  constitutional  prohibition  of 
unreasonable  searches;  however,  it  was  sufficient  that  the  re- 
((uirement  was  regarded  as  oppressive,  and,  as  was  intimated 
in  the  Launder  case,  the  business  was  one  which  could  not  be 

"1  Law  of  June  30,  188T.  93  St.    Joseph    v.    Levin,    128    Mo. 

y-;  Laniidor    v.     Chicaiio,     111     111.     588;  31  S.  W.  lOL 
291.  •■>*  Clinton   v.   Phillips,  58  111.   lOi'. 


40  METHODS  OF  THE  POLICE  POWEK.  §  4^ 

prohibited.  l*rovisioiis  reqinriny  drugyists  to  keep  records  of 
sales  of  liquor  or  poison,  and  imposing  a  similar  duty  upon 
dealers  in  -weapons,  are  not  nneommon. 

^  44.  Statistical  information.— As  a  rule  tlie  reiiuiremeut  of 
reports  and  registration  refers  to  matters  whieli  are  subject  to 
regulation,  and  the  same  considerations  which  justify  the  exer- 
cise of  regulative  power,  also  justify  subsidiary  means.  In 
some  cases,  however,  the  requirement  does  not  serve  the  i)ur- 
pose  of  regulation,  but  is  mei-ely  intended  generally  to  inform 
the  state  of  the  condition  of  the  people,  tlieir  industries  and 
otlu'r  interests.  This  is  analogous  to  the  power  exercised  in 
taking  the  census  whicli  is  justified  primarily  by  the  need  of 
electoral  apportioiniiciil.  but  in  tlie  second  place  also  by  the 
necessity  of  giving  the  stale  such  information  as  will  make 
intelligent  legislation  possible.  Hence  the  law  may  require 
under  j)enalty  that  the  (pu'stions  put  1)\  einnnerators  be  an- 
swered,' excepting  probably  su<'li  (lueslions  as  bavi'  no  con- 
ceivable reference  to  legislation,  as  for  instance  questions  con- 
cerning i-eligious  Ijclief.  'I'lic  requirement  of  reports  of  vital 
statistics  (i)irths  and  deaths).-  lias  been  upheld.-'  In  sustaining 
a  coal  weighing  act  tlic  Supreme*  Court  of  Kansas  relied  in 
l»art  upon  its  bcnciit  in  .securing  ini'(»rnia1  ion  regarding  an  im- 
portant industi'\'  of  the  state;'  but  tlie  Supreme  Court  of  Illi- 
n(Ms  has  held  that  coal  weighing  acts,  if  otherwise  unconsti- 
tutional, eaniiol  lie  snstaine(l  merely  on  the  gi'ound  that  the 
reeor-ds  ol"  tlh'  weighing  give  valiial)le  statistical  infornmtion  : 
"  Wc  deny  thai  the  bni'di-n  ejiii  be  inqiosed  011  any  corporation 
or  individual  not  aelinLf  undei-  ,1  license,  or  by  virtue  of  a 
franchise,  bn\ing  pi'operty  or  hiring  labor,  merely  to  furnish 
.statistics,  unless  upon  due  conqieiisat  ion  to  be  made  1  lierefo)-.  "•'"' 
A  recpiireiiienl  foi-  mere  slatislical  purposes  must  be  I'eason- 
nble  and  not  bui'(|eiisome  or  unequal:  a  liberal  interpretation 
nf  thi'  const  il  u1  ional  guaranty  aitainsl  unreasonable  searches 
would  sustain  an  aiiijile  judicial  control." 

.;  45.     Passports  and  registration  of  strangers.     The  Chinese 
••X«'ltiHi(tn  act   of  1S!IL'   ri'<(uires  of  ('liinesc   laboi-crs  certificates 

■  1  iuii'<l  SiiiicM   |{fv.  .Milt.    S   -I'.'l.  '  Stiilr   v.    Wilsiiii,  CI    K:iii.   111! ;    17 

-  S.  1.    ('liapiii,    .Munii-ipal    HunitM  I,.   !>'.  .\.  71. 

li.  H,  ■  .\Iillctt    V.    I'c.i.lc.    117    ill.    L'iM. 

^  KnhiiiMoti    V.    Iliiiniitiiii,    (iO    jnwii  .'{(•.''i. 

'■■  n.iv.i  V.  r.  s..  1  ir.  d.  s.  liKi. 


§  46  KEGISTKATIOX.  41 

of  residence  without  which  their  being  in  the  country  is  deemed 
unlawful.  Perhaps  this  is  at  present  the  only  instance  in  this 
country  (except  in  the  case  of  convicts  on  parole),  where  regis- 
tration is  made  a  condition  of  residence.  A  law  of  New  York 
formerly  required  all  immigrants  to  register  their  names  and 
this  act  was  upheld  by  the  federal  Supreme  Court."  It  was  also 
said  in  the  Passenger  Cases^  that  every  state  has  an  unques- 
tioned right  to  require  the  register  of  the  names  of  the  persons 
who  come  within  it  to  reside  temporarily  or  permanently.  This 
right  is  exercised  in  Germany,  aiid  formerly  passi)orts  were 
re([uired  to  travel  from  place  to  place,  and  no  one  was  allowed 
to  stay  in  a  city  for  more  than  a  few  days  without  a  permit— 
a  system  first  introduced  in  Paris  in  1792.  That  re([uirements 
of  this  nature  are  burdensome  is  undeniable,  and  is  proved  by 
the  fact  that  most  European  states  have  abolished  them.  They 
may,  however,  be  valuable  aids  in  tracing  criminals,  and  it 
would  be  difficult  to  point  out  a  constitutional  principle  with 
which  a  general  requirement  of  this  nature  could  be  said  to 
be  in  conflict. 

§  46.  Registration  and  equality.— But  it  would  not  be  con- 
sistent with  the  principle  of  equality  to  require  registration 
only  of  specified  classes  unless  these  classes  are  aliens  not  en- 
joying full  constitutional  rights.  A  statute  of  Illinois  required 
that  keepers  of  lodging-houses  should  keep  registers  of  their 
lodgers  accessible  without  charge  to  any  person  asking  to  see 
the  same,  and  should  file  with  the  County  Clerk  sworn  state- 
ments giving  particulars  as  to  the  house  and  the  number  of 
guests.^  The  act  was  held  unconstitutional  as  class  legislation 
since  it  applied  to  lodging  houses  only  and  not  to  boarding 
houses  or  inns.^^'  The  act  was  thereupon  amended  so  as  to 
apply  to  all  lodging  houses,  inns  and  boarding  houses,  estab- 
lishing a  full  and  comprehensive  system  of  registration  witb 
regard  to  all  strangers  not  stopping  at  innvate  houses,  and  any 
persons  not  strangers  who  may  happen  to  use  hotels  and  board- 
ing houses.i^  If  the  measure  Avere  purely  and  simply  one  of 
registration  of  strangers  it  might  be  objected  that  it  discrimin- 
ates in  favor  of  those  visiting  privately,  but  such  discrimination 

TNew  York  v.  Miln,  11  Pet.  102,         lo  Bailey   v.    People,    190    111.    28; 
1837.  60  N.  E.  98. 

s  7  How  1^83,  404.  n  Act  May  10,  1901. 

oAct   April   21,   1899. 


42  METHODS  OF  THE  POLICE  POWEE.  ^  47 

is  fommou  iu  European  cities  aud  cannot  be  regarded  as  un- 
reasonable; the  measure,  however,  is  in  reality  one  for  the 
regulation  of  the  business  of  lodging  persons  for  hire,  and  such 
regulation  cannot  be  beyond  the  power  of  Ihe  state.  The  act 
provides  for  a  more  extensive  plan  of  registration  than  has 
been  previously  attempted  under  our  system  of  government; 
but  no  attempt  is  made  to  enforce  the  law.'- 

IXSPECTTOX.     §  47-48. 

5;  47.  Inspection  and  search.— The  power  of  insi)ection  is 
exercised  as  an  mcideiit  to  regidations  for  the  prevention  of 
disease,  accident  or  framl.  It  operates  almost  exclusively  on 
buildings  and  machinery  or  other  api)aratus,  and  on  articles 
exposed  for  sale.  The  powei-  of  insi)ection  is  distinguishable 
from  the  power  to  search:  the  latter  is  exercised  to  look  for 
pi-(ipeity  which  is  concealed;  the  former  to  look  at  property 
which  is  exposed  to  i)ublic  view  if  offered  for  sale,  ami  in 
'nearly  all  cases  accessible  without  violation  of  i)rivacy.  Hence 
inspection  d-oes  not  iHMiuire  aiVulavit,  prot)abh'  cause  or  ju- 
dicial warrant,  'i'lie  I'ight  to  inspect  may  he  reserved  as  a  i-on- 
dition  in  granting  a  license.'-' 

The  constitutional  aspect  of  inspection  is,  however,  ditferent 

i-Objeclions  to  icyistraliun.—  an  ideal  state  of  society,  pviblicity 
Whore  tb«>  rcfurnfiiiiMit  of  refjistra-  inij^lit  he  no  objection,  but  the  po- 
tion I'onflii-ts  witli  ciistoni  or  scnii-  lice  puwer  in  such  a  state  would  bo 
nient,  it  is  apt  to  be  rej^arded  as  superlluous.  Vet  tluTc  is  notliin;^ 
extremely  oiliouH.  No  diflieuity  la  in  our  eonstitutional  law  whu-h 
felt  in  insisting  n|)(in  iicensea  or  i-er-  woidd  prevent  the  enaetnienl  of  a 
« nmnies  in  the  furnnition  (if  the  similar  measure  in  this  country,  .just 
niHrria^e  relation  because  .such  pub-  a.i  we  ha\r  laws  ir(|uiriiif,r  rejKirts 
lieity  in  traditional.  When,  how-  from  all  corporations.  Public  senti- 
<-ver,  a  (lerman  law  recently  rei|iiired  meat  must  be  relied  upon  to  pre- 
aH  a  cdnditiim  of  Ihe  validity  <d'  \inl  such  letiislation  or  its  enforce- 
df>;iliii){H  in  fnturen  that  tlie  parties  umiiI.  .\  ;;nverniiient  cannot  be  said 
nhotil'l  be  entered  in  an  ex<haii;;e  In  be  free  and  liberal  in  which  there 
refjlHter.  there  waH  an  alinoHt  nniver-  is  not  a  considerable  mar^'in  between 
Hill  prolewl,  and  few  persoiiH  or  tlrms  the  jiractice  of  lejrislation  and  con 
were  found  to  be  willing,'  to  com|dy  stitution.il  liiintal  ions ;  for  a  >jov- 
\»ith  Ihe  re<|nire:nenl,  preferring  to  «!innu«nl  iniist  iiave  powt-rs  to  exer 
liike  their  chanceM  »H  to  the  perform-  cJHe  in  time  nY  enuM>cency  which  it 
nnee  of  e«.nlr»et»«.  The  dennind  for  would  be  tyranny  t<i  use  withoul 
IIjo   ntiro^ntion    of    tiiJH    proviKJon    is  such  necessity. 

iM»  iir|{iMil    flinl    Hie  jjovernmeni    will  '•'Schumacher    v.    New    \<<ik,    lOG 

probably  \k'  unable  to  reHiHt  it.     In  N.  Y.  10.1;  .W  N.  E.  773. 


§  48  ixspp:ctiox  and  search.  43 

where  it  is  extended  to  i]it(M'ior  arranjiements  of  private  houses, 
or  personal  property  kept  therein  in  private  custody,  it  ai)- 
pears  that  health  authorities  often  claim  the  right  to  enter 
private  houses,  to  inspect  sanitary  arrangements,  in  some  cases 
by  express  legal  authority.^"*  So  in  Chicago  the  health  com- 
missioner is  given  power  to  inspect  the  plumbing  and  other 
sanitary  arrangements  in  all  houses,  while  the  power  of  the 
commissioner  of  buildings  to  enter  buildings  to  verify  the 
compliance  with  the  building  regulations  does  not  extend  to 
houses  used  as  residences  for  one  or  two  families,  or  for  less 
\hcin  25  persons.^  ^  This  power  does  not  seem  to  have  been 
affirmed  or  denied  by  judicial  decision ;  but  on  principle  it 
would  seem  that  administrative  officers  cannot  be  vested  with 
general  power  to  enter  private  premises  at  any  time,  except  to 
abate  actually  existing  public  nuisances,  and  that  every  such 
inspection  against  the  will  of  the  owner  should  be  based  on 
judicial  authority  complying  with  the  constitutional  require- 
ments with  regard  to  searches.  The  English  law  requires,  in 
case  of  refusal  of  admission,  an  order  of  a  Justice  after  rea- 
sonable notice  to  the  person  having  the  custody  of  the  house 
to  be  inspected. 1^  ^Massachusetts  likewise  in  such  case  requires 
a  warrant  but  does  not  provide  for  notice,'"  but  the  English 
act  gives  a  general  power  of  entry  in  cases  of  epidemic  dis- 
ease.^* 

§  48.  Secrecy  of  letters.  — The  power  of  inspection  cannot  be 
exercised  with  regard  to  closed  letters,  for  the  purpose  of  dis- 
covering obscene  matter,  lottery  tickets,  etc.  The  acts  of  Con- 
gress forbidding  the  use  of  the  mails  for  sending  such  matter 
expressly  prohibit  the  opening  of  tirst  class  mail  matter.^"  Tn 
former  times  it  seems  to  have  been  regarded  as  a  prerogative 
of  the  government  to  look  into  private  correspondence  in  order 
to  detect  any  danger  to  the  state.  So  we  find  in  1406  an  order 
of  the  Privy  Council-"  that  Lombards  conducting  exchange  of 
moneys  should  write  their  letters  in  intelligible  language  and 
not  in  ciphers,  and  the  ordinance  of  1656  establishing  a  regular 
post  office  stated  such  an  institution  to  be  the  best  means  for 

1*  Chapin  Municipal  Sanitation,  p.  i**  Sec.  137  of  Act. 

112.  inRev.    St.    §§    ?.02!)    aii.l    4041.    I. 

^■'  Rev.  Code  1897,  §§  84.5,  2.51.  Suppl.  SO:?. 

i'i.38  &  39  Vict.,  ch.  5.5,  §  lOS.  -'"Nicolas  Proceedings  I,  :iS9. 

1"  Chapin,  p,  113;   Rev.  L.  cli.  7.5, 
§  74. 


44  METHODS  OF  THE  POLICE  POWER.  §  49 

discoverinjr  and  i)reveuting  many  dangerous  and  wicked  de- 
signs against  the  Commonwealth.-'  Strange  to  say,  in  England 
the  law  to  the  present  day  sanctions  the  opening  of  letters  in 
obedience  to  an  express  warrant  in  writing  under  the  hand  of 
one  of  the  principal  Secretaries  of  State.--  But  the  principle 
of  secrecy  is  recognised  in  the  constitutions  of  many  other 
European  states,  and  is  included  in  the  guaranty  against  un- 
reasonable searches  and  seizures.  "No  law  of  Congress  can 
place  in  the  hands  of  officials  connected  with  the  postal  service 
any  authority  to  invade  the  secrecy  of  letters  and  such  sealed 
packages  in  the  mail:  ami  all  regulations  adopted  as  to  mail 
matter  of  this  kind  must  be  in  subordination  tn  the  great  prin- 
ciple embodied  in  the  fourth  amendment  of  the  constitution. "^3 

NOTICE  OF  A  PREJUDICIAL     CHARACTER.     §49-52. 

$  49.  Offensive  coloring-.-'  — It  is  an  abuse  of  the  police 
jxiwcr  tit  re(iuire  notice,  not  for  the  purpose  of  sho^\•illg  the 
true  character  of  an  article,  l)ut  in  order  to  impair  its  value. 
In  People  ^'f  Ai-cMsIjerg,--"'  the  Court  of  Appeals  of  New  York 
raised  without  answering  the  ({uestion  whether  the  legislature 
could  compel  the  artificial  coh)ring  of  oleomargarine,  if  in 
rrality  its  color  was  like  that  of  butter.  In  several  states  the 
statutes  did  retpiire  oleomargarine  to  be  colored  pink  or  some 
other  uiuiatural  color  on  the  plea  of  making  deception  impos- 
sibif.  'i'lu'se  statutes  were  uphrld  in  New  llaiiipshirc  and  West 
Virginia  on  iIm-  grituiid  lliat  liu'  legislature  must  deteniiitie 
in  its  discrelioii  wliat  measures  are  necessary  lo  |)i-event 
fraud.-"  liiil  Id  require  sueii  a  pivpni-at  ion  ol'  an  article  as  to 
reri<b*r  it  unsaleable  is  in  i-eality  not  regulation,  but  j)i'ohil)i- 
ti«»n,  aii<l  sliould  be  judged  as  sueli.  This  lias  been  recognised 
by  the  decision  (if  llie  I'nited  Stales  Supreme  ('oiii'l  deelai'- 
iiig  tlie  New  llampsliii-e  statute  In  1h  void  in  so  lar  as  it 
interfered  witli  interstate  (Mmimei-cc,  while  a  leiiilimale  meas- 
ure   for   tin-    pi-eveiition    o)'    fraud    bad    1 n    upheld    as   against 

llie  freedotn  (»r  interstate  eommercc.-'" 

'•  Hrofim    ('«in«fitiiti(>ii!il     Liiw.    |..  -••  10.')  N'.  V.   Il'.H. 

«nfl.  -"Stjifc  V.  MiirHliJill.  i;i   X.  IK  r));t; 

75  7  Will   IV    I    Vi.t..  rli.  :5(5.  9  25.  Sl:il.'  \.   MyorH,  4L'  W.   Vji.  SL'12. 

■1  Kx  piirlr  Jiukmiii,  51(5  V.  S.  7'27,  -' ('nUiux   v.    New    ll:mi|iHliin>.    171 

IH7«.  I*    H.  :Ht;    Phimlry  v.   MjissiKlniHctt.s, 

a«H«-o  iijmi   9   TiH.  ]',r}  U.  S.    U]]. 


§  50  PREJUDICIAL  MARKS.  43 

§50.  Goods  marked  "convict-made."— The  decision  in  the 
Collins  case  establishes  for  purposes  of  interstate  c(niiuieree 
the  principle  Avhich  ought  to  be  recognised  for  all  i)urposes  that 
the  power  to  require  the  marking  of  goods  may  be  exercised 
only  so  as  to  reveal  their  true  character,  and  not  so  as  to  im- 
press upon  them  a  character  which  they  have  not  in  reality. 
The  Court  of  Appeals  of  New  York  has  gone  one  step  further, 
and  decided  that  it  may  not  even  be  required  that  the  goods 
shall  be  marked  so  as  to  show  their  true  origin  or  manufacture, 
when  there  is  no  real  fraud  to  be  prevented,  merely  for  the 
purpose  of  making  the  goods  distasteful  and  hinder  their  sale. 
It  was  therefore  held  that  the  legislature  may  not  recjuire 
goods  manufactured  in  prisons  (not  controlled  by  the  state 
itself,  the  act  applying  only  to  prisons  of  other  states)  to  be 
marked  "convict-made."-'^ 

§  51.  Goods  marked  "tenement  made."— Perhaps  the  same 
objection  applies  to  the  requirement  of  marking  goods  "tene- 
ment made,  "29  unless  it  can  be  shown  that  such  notice  serves 
a  valuable  purpose,  and  the  same  principle  should  be  generally 
applied  to  all  notices  where  the  requirement  plainly  indicates  an 
intent  to  harm  a  lawful  business.  The  state  should  certainly 
not  require  notice  to  be  given  of  certain  facts,  merely  because 
these  facts  are  prejudicial,  when  their  concealment  involves  no 
element  of  deception  or  other  danger,  and  when  their  knowl- 
edge will  not  aid  some  legitimate  purpose.  And  if  it  is  urged 
that  the  law  may  insist  upon  the  statement  of  the  truth  regard- 
ing any  matter,  because  the  knowledge  of  the  truth  is  generally 
beneficial,  and  may  serve  valuable  legitimate  purposes  in  the 
assertion  of  civil  rights,  it  must  be  answered  that  the  require- 
ment must  operate  equally  upon  all,  and  not  single  out  special 
classes  of  goods  or  persons.  That  only  the  principle  of  equality 
could  save  such  a  requirement,  is  distinctly  recognised  in  the 
Hawkins  case. 

Perhaps  it  should  be  said  that  even  where  the  possibility  of 
deception  exists,  the  requirement  of  particular  forms  of  notice 
is  not  legitimate,  when  others  are  adeciuate.  and  those  insisted 
upon  are  plainly  intended  to  prejudice.  This  would  do  away 
with  such  an  unenforceable  requirement  as  that  the  innkeepei- 

28  People  V.  Hawkins,  1.57  N.  Y.  1,  -•■'  Mass  Rev.  Laws,  i-b.  106.  §  .IS. 

1898. 


46  METHODS  OF  THE  POLICE  POWER.  §  52 

should  orally  inform  his  jiuests  that  he  sells  oleomargariue  — a 
requirement  found  in  a  number  of  states. 

^  52.  Resulting"  injury.  -  Where,  on  the  other  hand,  the 
primary  purpose  is  legitimate,  the  fact  that  the  nature  of  the 
business  makes  publicity  odious,  (hies  not  invalidate  the  retpiire- 
ment.  Thus  it  is  provided  in  a  nundier  of  states,  that  rooms 
Avhere  intoxicatino;  liquors  are  sold  shall  be  situatetl  on  the 
jrround  floor  of  the  buildiny,  frontinjr  on  the  street,  so  arranjyed 
with  windows  and  <;lass  doors  that  the  interior  may  be  on  view 
from  the  street,  that  no  screens,  blinds,  or  other  obstructions 
l)e  placed  so  as  to  prevent  the  entire  view  of  the  room  from  the 
street.  It  is  obvious  that  such  an  arrangement  allows  a  police- 
man to  perform  liis  duty  in  supervising  the  conduct  of  the  busi- 
ne.ss  without  leaving  the  street.  Uiit  a  reiiuirement  which 
deprives  tiie  patrons  of  substantial  comforts,  as  by  forbidding 
the  use  of  shades  against  the  sun,  is  opjiressive,  and  can  be 
uplield  oidy  where  the  business  may  be  altogetlier  ])rohibited. 
It  is,  therefore,  regularly  not  within  the  scope  of  municijial 
ordinance  pow(M"s.-'"  but  lias  hrou  upheM  wIkmi  iiiqx^sed  by 
statute.:" 

I'pon  ihf  same  jirin('ii)l('  llii'  law  may  re<(uire  notice  to  he 
irivcn  of  cases  of  infectious  oi-  contagious  disease  dangerous 
to  tin*  ])id)Iic  health,  althoii'_;h  such  notice  may  hi'  prejudicial 
to  the  j)erson  affected  by  the  disease. •'- 

NOTICE    Ul"     \\    I\<TnMIM.VTlXi;    (  11AKACT1:K\     §r)3-55. 

?■  53.     Requiring-  statement  as  to  lawful  conduct  of  business. 

\VhiTi-vei-  ;i  i-eporl  IS  re(|iiii'e(|  in  coiiiiecl  ion  witli  a  bnsi- 
iiess  demanding  police  supervision,  the  rc(iuirement  serves  not 
only  the  pnrp«»se  of  enal)ling  the  state  to  discovei-  the  ne<'d  of 
adilitioiiiil  measures  of  protection.  Init  is  also  intended  to  in- 
duce compliance  with  the  law.  In  \  iew  uf  the  possibility  that 
the  law  has  not  been  complied  with,  a  tiMitliliil  r-eport  nia\' 
n'Veal  pnnisliahle  nets  or  ctmdncl. 

Ih  then  a  rerpiireinent  lia\iiiL:  possilily  lliis  effect  consisliMit 
with  flic  constitutional  protection  at-ainst  self  crimination  .'  .\ 
jirovisirui   in   the  nriti  trust    ;ict    of   Missouri    re(piii-ing  of  evei-\- 

■"■  < ■hiiiiipcr     V.     Crcctii-iiMtIc,      13H  -•  StiUc  v.  (mtIijuiII,   I  I."i  IikL    l.'i'.l; 

I  M.I.  :«:«»:  21  K.  H.  A.  7«tH;    Itninrtt  4>   N.   K.    Iii'.t. 

•.    F'lihifiki    fTniin.).   r.J   H.    W.    '.M.'t;  •!-■  IVoplc    v.    Slmilv     (Mi.l,.).    <il 

17  L.  U.  A.  L'7M.  N.  \V.   l.ltl. 


^  54  INCRIMIXATIXG   REPORTS.  47 

corporation  an  annual  affidavit  to  the  effect  that  it  had  not 
entered  into  any  trust  or  other  unlawful  combination  was  held 
unconstitutional. ^-^  In  an  analogous  case,  however,  wliere  a 
druiriiist  i-et'used  to  j)roduce  before  a  grand  jury  prescriptions 
filled  by  him  during  the  previous  year  on  the  ground  that  they 
were  incriminating,  it  was  held  that  the  production  might  be 
compelled,  since  it  was  a  condition  upon  which  the  druggist's 
license  was  granted,  and  because  the  prescriptions  were  not 
private  but  public  papers  of  which  the  druggist  was  merely 
the  custodian."'^ 

In  a  case  upholding  the  requirement  of  pawnbrokers'  re- 
ports, the  Supreme  Court  of  ilissouri  intimated  that  the  in- 
formation thus  obtained  could  not  be  used  for  the  purpose  of 
a  criminal  prosecution  of  the  person  making  the  report. •'•''  It  is 
clear  that  if  a  person  were  first  compelled  to  report,  and  then 
prosecuted  for  the  things  he  reported,  the  constitutional  guar- 
anty would  be  violated.  Can  it  be  said  that  the  constitutional 
provision  is  saved  by  reading  into  the  statutory  duty  to  report 
a  protection  which  the  legislature  has  not  expressed?  What 
the  constitution  promises  is  not  immunity  from  prosecution, 
but  immunity  from  self-incrimination.  How  then  if  the  statute 
demanding  the  report  should  at  the  same  time  promise  im- 
munity from  prosecution  ?  It  may  then  be  urged  that  there  is 
no  longer  any  possible  criminal  case  as  to  which  the  person 
reporting  could  be  said  to  be  a  witness  against  himself. 

§  54.  Immunity  from  prosecution.— Upon  this  point  the 
United  States  Supreme  Court  has  rendered  two  notable  de- 
cisions. Section  9  of  the  Interstate  Commerce  Act  pro- 
vided: "the  claim  that  any  testimony  or  evidence  may  tend  to 
criminate  the  party  giving 'sueh  evidence  shall  not  excuse  such 
witness  from  testifying;  but  such  evidence  or  testimony  shall 
not  be  used  against  such  person  on  the  trial  in  any  criminal 
proceeding."  It  was  held  in  Counselman  v.  Hitchcock'^''  that 
this  was  not  an  adequate  protection  since  it  would  not  prevent 
the  use  of  the  testimony  to  search  out  other  testimony  on  which 
a  prosecution  and  conviction  might  be  based.^"     The  statute 

^3  State  v;  Simmons  Hardware  Co.,  3"  So  also  Emery 's  case  107  Mass. 

3  09  Mo.  118.  17-.   See  on  the  other  hand  People  v. 

34  State  V.  Davis,  108  Mo.  666.  Kelly,      :24  N.  Y.  74:  "Neither  the 

3s  St.   Joseph   V.   Levin,   31    S.   W.  law  nor  the  constitution  is  so  sedn- 

101;  128  Mo.  588.  Ions  to  screen  the  gfuilcy  as  the  ar- 

3fi  142  U.  S.  547.  gument  supposes.     If  a  person  can- 


48  METHODS  OF  THE  POLICE  POWER.  §  55 

was  thereupon  amended  as  follows:  "But  no  person  shall  be 
prosecuted  or  subjected  to  any  penalty  or  forfeiture  for  or  on 
accoinit  of  any  transaction,  matter  or  thinp:  concerninii'  which 
he  may  testify,  or  produce  evidence,  documentary  or  other- 
wise, before  such  commi.ssion,  or  in  t>bedience  to  its  subpoena, 
or  the  subpoena  of  either  of  thtMu.  or  in  any  such  case  or  pro- 
ceeding. "^^ 

In  Brown  v.  Walker^'^  it  was  held  that  Avith  this  protection 
the  witness  mi^ht  be  compelled  to  testify.  Four  Justices  dis- 
sented on  the  ground  that  the  witness  was  still  ex])osed  to  dis- 
grace and  to  the  possibility  of  having  to  defend  himself  against 
the  prosecution  1>rought  notwithstanding  the  statute.  When 
we  consider  that  the  constitution  provides  merely  that  no  one 
shall  be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself,  the  ])urpose  seems  clear  to  protect  from  punishment, 
and  absolute  security  from  punishment  should  perhai)s  be  re- 
garded as  sufficient  to  overcome  a  i)rivilege  which,  too  liberally 
construed,  might  greatly  hamper  the  discovery  of  truth  in  ad- 
ministrativi'  proceedings. 

^  55.  Obligation  to  report  subject  to  claim  of  privilege.— 
The  analogy  between  compulsory  testimony  and  comjmlsory 
reports  is  obvious.  Tlie  constitutional  ])rotection  against  self- 
crinnnation  would  not  ordinarily  render  invalid  a  statute  im- 
posing an  obliu'ation  to  report;  for  the  ])res\nnption  is  that  the 
report  called  foi-  will  not  reveal  illegal  conduct.  Tf  a  ]iarty 
rci|Mii-iM|  lo  rc|)(ir1  I'ears  that  his  report  will  make  him  liable  lo 
prosecution,  il  will  be  incmnhctil  upon  liim  lo  claim  bis  consfi- 
tUlio|i;il    in-iviletj-e,    ;iii(|    he   ;i|(ine    will    lii'    ivlieved. 

May  the  l;iw  re(|llil-e  ;i  i'(|icirt  mel-ely  1(1  the  effect  that  its 
provisif>ns   li;ive   ni-   h;ive    iini    heeii    violated,    |)i-(iniisiiiL:'   at    the 

iKit  iiivo  c-viiifticf  ii|)()ii  tiic  trial  of  T\io|)l(>    v.    O'liiicn,    (is    \.     K.    ;{;").■!. 

iinother    pcTNon    wiflHuil    <liscl((sin^  < 'Diiiisclriijui   v.    1 1  ii  .lndi'li    h.-is   ix'cii 

<»tli«T      c-irctiiiiHtaiiccH      wliii'li       will  Idllnwcd      in      lliiiiuis.      I>;ims(iii      v. 

innki-  liiM  nwii   ;;iil!f   u|i|i:irriil ,  or  jil  iiovdni,    Kid    III.  ()i;{;   4:5   N.    10.   7S1. 

IciiMt    ciipalilc   (if    prodl',    thoiijjli    his  'rin-  aiitlioril y  of  tlie  V.  S.  Hniirciiif 

nccount   of   tlip   tranmu-tioiiM  HhonId  <nuit      is     iml      liiiidin^r     n|i()n     liir 

ni>vi!r  )u!  iiMcil  nH  (>viiicnc<>,  it   iH  flic  Htatcs    in    this     m.itlcr,     since     1  he 

rninforliinc  of  liiM  coiKlitiuii,  ami  not  I'iflli    .\  mcnilinciil     has    im    :\|i|ilica- 

aiiy   want  of   huinanity    in   the   Law.  timi   to    I  In-   states. 

However,  the  Court  of  Appi-alH  of  •"•Aft     l"el>.    II,    Ih'.i.'.,    lM    Sn|i|.l. 

Ni'w    York    JuiH    n-contly    n'v«'rHfi|  SO.     S.e  I'oot  \.  I'.M.Iianaii,  11.!  I'e.l. 

itK   poxition    and    adopted    the    view  I.^ti, 

moru      favoraJde      to      flw      witness.  :i"l(il    T.   S.   ."I'.M,    ISIIC. 


^  55 


INCRIMINATING    REPORTS. 


49 


same  time  immunity  from  prosecution  l)y  i-eason  of  anything' 
(lisolosed  by  the  report?  It  may  he  contemk'd  -with  ^'roat  foree 
that  the  spirit  of  the  constitutional  claus(!  forl)icls  examinations 
the  sole  object  of  which  is  to  compel  the  admission  of  illi'<;al 
conduct.  Yet  such  a  requirement  has  been  sustained  in  Illinois, 
where  the  anti-trust  law  requires  of  corporations  statements 
under  oath  as  to  whether  they  are  parties  to  trusts,  ^ivinj;  at 
the  same  time  the  necessary  guaranty  ag:ainst  prosecution."*" 
The  effect  of  such  a  Uiw  would  be  that  every  corporation  may 
violate  the  law  with  impunity,  provided  it  is  willinjr  to  disclose 
such  violation.  The  prohibition  of  the  law  would  thus  practi- 
cally be  confined  to  secret  and  undisclosed  combinations. 

An  act  requiring-  all  printed  articles  which  ar('  libelous  to  be 
signed  with  the  true  name  of  the  writer,^i  but  containing  no 
provision  giving  immunity  from  prosecution,  is  probably  un- 
constitutional in  accordance  with  the  j)rinciples  above  set  forth, 
while  an  act  requiring  all  articles  to  be  signed  would  be  unob- 
jectionable.-*2 


40  People  V.  Butler  Street  Foundry 
and  Iron  Co.  (Til.),  201  111.  2.S6,  66 
N.  E.  349. 

41  California  Penal  Code,  §  259. 

42  May  an  oflScer  or  shareholder  of 
a  corporation  be  compelled  to  testify 
or  report,  and  the  corporation  be 
fined  on  account  of  matters  thus  dis- 
covered? As  the  shareholder  pays 
part  of  the  fine,  it  seems  that  it 
would  be  unconstitutional  to  fine 
the  corporation.  It  -n'ould  also  seem 
inadmissible  to  treat  oflScer  and  cor- 
poration for  this  purpose  as  dis- 
tinct. If  a  corporation  is  subject  to 
criminal  prosecution,  it  must  have 
the  constitutional  protection  against 
self-crimination,  this  however  it  can 
have  only  in  the  persons  of  its  mem- 
bers and  oificers;  the  incriminating 
testimony  must  therefore  be  gath- 
ered from  persons  not  connected 
with  the  corporation  in  either  ca- 
j)acity.  However,  see  In  Re  Pooling 


Freights,  115  Fed.  Rep.  588,  con- 
Ira:  "You  are  also  instructed  that 
this  act  of  February  11,  1893,  does 
not  grant  immunity  from  indictment 
and  prosecution  to  a  corporation 
even  though  its  officers  or  agents 
have  been  compelletl  to  appear  be- 
fore the  grand  .jury  and  testify  to 
facts  which  would  lead  to  incrimi- 
nate it,  or  produce  books  and  papers 
of  the  corporation  bearing  upon  the 
offense  of  which  it  is  charged.  The 
immunity  of  the  statute  is  confined 
to  the  witness  who  gives  his  testi- 
mony, belongs  only  to  him  person- 
ally, and  cannot,  in  the  nature  of 
Ihe  thing,  be  extended  to  include  the 
corporation  ho  represents.  There  is 
no  vicarious  immunity  providcil  for 
by  the  statute,  and  therefore  the 
corporation  carrier  cannot  become 
immune  through  the  grace  of  the 
statutory  pardon." 


50  METHODS  OF  THE  POLICE  POWER.  §  56 

COMPULSORY   ASSOCTATION.43     §56-57. 

j;  56.  Legislation  using  it  as  a  means  of  control.  — Compul- 
sory association  is  a  eharaeteristie  of  llic  jxjlitical  cnmniunily. 
the  state  and  its  subdivisions.  It  is  also  resorted  to  as  a  meas- 
ure of  police  legislation  in  tlie  ease  of  certain  improvements 
(drainage  and  irrigation)  where  the  relative  position  of  several 
pieces  of  land  makes  joint  action  necessary  or  beneficial."*"*  As 
a  means  of  police  control  compulsory  association  may  be  used 
to  secure  the  better  supervision  of  the  conduct  of  certain  forms 
of  business  which  are  subjected  to  regulation  in  the  public  in- 
terest. It  is  practically  immaterial  Avhether  all  the  jx'rsons 
engaged  in  the  business  are  forced  1o  join  the  association  or  are 
made  members  of  it  by  act  of  law,  or  whether  an  association 
which  they  have  a  right  to  join  is  given  power  over  them,  for 
in  the  latter  case  they  are  members  at  all  events  for  the  i)urpose 
of  being  liound,  and  it  is  merely  optional  with  tliem  Avhether 
they  will  jiarticipate  in  the  exercise  of  tlu'  association's  power. 

The  i^olicy  of  compulsory  association  is  not  a  common  ouv 
ill  tliis  country,  and  is  j)ractically  confined  to  tlie  professions 
that  have  lo  do  with  the  public  hi-alth  (medicine  and  sni'gery, 
dentisti'\'.  pli;ii-iiiacy,  etc).  Al  an  carl\-  date  the  laws  of  New 
York  provided  that  evei-y  j^hysician  and  sni-geon.  upon  pain  of 
forfi'iting  his  license,  should  join  tlie  comity  nie<lical  society 
winch  had  examining  powers  and  also  had  authority  to  luring 
charges  (d'  iinsconduct  and  lo  susi)end  a  i)hysician  fi'om  i)rac- 
tice  jtending  their  determination  by  a  coui't.'"'  I'nder  the  pi-es- 
ent  law  a  sindlar  pnliey  is  ap|)lied  c(»nspicuously  to  tln^  business 
of  pharmacists.'*'  The  licensed  |)li;ii-iii;icists  in  different  sec- 
tions of  the  state  eiret  a  state  boai-d  of  |)|i;ifniacy.  The  state 
lutard  lias  pnwer  to  regulate  Ihc  practice  ol'  pli.i  niiacy,  to  regu- 
late the  sale  of  pnisdjis,  to  regulate  and  <-onlro|  l||c  eli;i ract ei" 
and  standard  of  drugs,  to  I'egulate  the  number  of  hours  consti- 
tuting a  day's  worl<  of  employees  in  ;i  drug  stf>re.  to  employ  in- 
spectors a>id  inspect  pharmacies,  etc.  lo  examine  applicants 
for  lic«'iise  and  issue  licenses  for  eu^jiging  in  the  business  of 
druggist  or  f)harmaeist  (subject  to  lei^al  re(|uireim>!i1s  regard- 
iiii:  Jipi)renticeship  or  erpiiv.-ileut  expei-ience  i.  to  rcfpiirc  regis- 
tration of  jtharmacies  and  ilrug  st(U-i's.  :ind   to  revoke   licenses 

^sSpo  nlwi  95  .104.  ■»4(t-444.  ••"Article    X  I .    I'uMir    lleiilili    j.aw 

**Hvo  85  440444.  infni.  of  Now  York. 

*^  1   Krv.  Mtafiif«'«,  y.  4r.2. 


v;  ,-j7  ('OM!*^LS()l;^■   associa'IMox.  51 

for  cause.  It  thus  appears  that  the  control  of  the  business  is 
vested  in  an  extraordinary  dejiree  in  the  pcM-sons  (•ni.'-;if_'-<'(|  in 
thilt  l)usin<'ss  and  th<Mr  representatives. 

J5  57.  Principles  applicable.  — The  foih)winp  observations 
su^ji'est  themselves  with  refei'ence  to  this  kind  of  le<;isiation  : 

The  duties  of  nienibershii),  especially  the  duty  to  submit  to 
the  authority  of  the  association,  depend  ui)on  the  participation 
in  its  rights;  i.  e.,  every  duly  qualified  pharmacist  must  have 
the  right  to  vote  foi*  the  members  of  the  stale  board.  From 
this  it  follows  that  the  (jualification  to  vote  should  not  be  deter- 
mined by  the  state  board  itself.  This,  however,  is  practically 
the  case  if  exclusive  examining  and  licensing-  powers  ari^ 
granted  to  the  state  board.  In  the  professions  of  medicine  and 
dentistry  the  boards  wdiich  examine  or  license  are  api)ointed  by 
the  state  regents,  and  the  respective  societies  have  merely  a 
right  to  make  nominations.  This  is  certainly  more  in  conform- 
ity to  constitutional  principle. 

There  are  strong  reasons  of  constitutional  policy  against 
allowing  the  police  power  of  the  state  in  the  matter  of  restrict- 
ing the  right  to  pursue  callings,  to  be  exercised  through  pro- 
fessional associations,  since  the  danger  of  the  abuse  of  the 
power  for  the  promotion  of  class  interests  is  thereby  increased. 
The  delegation  of  power  to  these  associations  should  therefore 
be  kept  Avithin  the  strictest  limits,  and  should  on  the  whole 
be  confined  to  measures  of  administration  and  the  initiation 
of  legal  proceedings  for  the  enforcenuMit  of  the  law.  The  right 
to  practice  a  profession  and  the  regulations  under  which  it 
may  be  practiced  are  matters  of  state  policy  to  be  determined 
by  the  legislature  itself,  since  they  affect  the  public  at  large. 
From  this  point  of  view  the  powers  of  the  New  York  state 
board  of  pharmacy  cannot  be  regard(Ml  otherwise  tlian  as  ex- 
cessive. 

It  is  significant  that  in  New  York  the  powers  of  medical  and 
dental  societies  have  gradually  been  reduced  until  practically 
every  compulsory  power  is  exercised  under  official  respon- 
sibility and  subject  to  the  control  of  the  state  regents.  This 
is  all  the  more  noteworthy  as  New  Yoi-k  eidists  the  aid  of 
private  corporations  for  the  performance  of  public  functions 
to  a  greater  extent  than  many  other  states. 

The  adoption  of  coinpulsory  association  as  a  nutans  of  police 
control  seems  to  demand  the  observance  of  the  following  prin- 
ciples : 


52  MKTHODS  OF  THE  FOLllE  POWER.  i;  58 

The  assofiatiou  slu)uld  be  organisetl  in  sueli  a  way  that  all 
those  who  may  eome  under  its  control  have  rights  of  active 
membership  in  it. 

The  power  to  determine  the  necessary  i|ualitication  for  admis- 
sion to  membership  should  not  be  vested  iti  the  association 
itself  or  in  its  rei)reseutatives. 

The  association  should  not  be  vested  with  legislative  powers 
beyond  tho  m;il\infr  of  liv-lnws  for  the  ninnntroniont  of  its  own 
atfairs. 

The  pt>wers  of  the  association  should  be  strictly  confined  to 
tilt'  administi-ative  management  of  those  interests  of  the  busi- 
ness ill  which  joint  and  uniform  action  is  a  legitimate  public 
concern. 

The  policy  of  compulsory  association  should  not  be  applied 
to  callings,  the  pursuit  of  which  is  a  common  right  and  not  de- 
|H'iidcnt  upon  license.'' 

PROHIBITTOX.-»«      §  58-62. 

;;  58.  Meaning  of  prohibition.— By  prohibition  is  under- 
stnod  tliat  letrislative  policy  which  renders  illegal  some  entiri' 
sphei-e  of  action  or  business,  and  not  merely  scune  particular 
mode  oi-  form  of  it,  or  merely  its  exercise  at  a  particular  time 
or  ill  a  j>arti('nlar  phu-e,  so  that  it  would  still  be  possil)ie  to 
erii;age  in  the  same  pursiiil  b\'  an  accommodation  to  legal  vo- 
<|uirements.  With  rel'ereiiee  lo  any  |iarlicular  su)>,jeet-iiiat  ler 
therefore  partial  jtrohibit ion  constitutes  regulation.'''  rmlii- 
l)ition  is  of  special  constitutional  interest  only  ^\  here  it  is  not 
confined  to  acts  intrinsically  evil  or  harmful,  but  extends  to 
practices  which  in  the  case  of  modei-ale  or  careful  exercise  may 
be  innocent  or  harmless,  and  ai-e  foi-bidden  on  account  of  a 
supposed  tendency  towanl  abuse  and   injury. 

I'roliibition  acts  u|)on  civil  liberty,  but  may  indirectly  make 
projterfy    less    valuable    by    <liiiiinisliing    opportunities    foi-    its 

♦'  .->.•.•   8  VXA,  ■ini.  liil>i1<Ml.     Hilt    the    rc^niiitidii    of    all 

«»  Si'c  almi   SS    1",    111;;,    177.   'Jilt-  ( (•iiiiiicnc  iiivnlvcs  \\w  pioliiliilioii  of 

J 17,   1.'83,  SSJJ-.'iM).  ccrfain  foniis  or  kinds  of  coinincrco. 

<•  The  clcciHion  in  the  Lottery  (!hh<'  If   ;i    |ni\\cr    \\<tc    i,'i\(ii    Id    rcmiiatc 

(rhnmpion  v.  Aiiich),  IHS  U.  H.  .TJl,  tlic   h;iIc   of    lottery    tickets    it    (•oiil<l 

rw'cinN    to    hoM    that     rcjjulation    in-  not     be    contenficil     lliat    tlie    pouer 

rlnrloK  firohihition.  Un<Ior  fho  power  conld  bo  oxerciHod  by  proliihitinjj  i\w. 

to     ri«t{"'n*''     ••omnn'm-     tlio     traiiH-  nalc. 
Jiortntioii  of  )oft«'rv  tirknlH  wiih  |irii- 


§58  PKuJiJiii'i'iox.  53 

profitable  use.  Where  prohibition  renders  illegal  the  use  of 
property  already  aequired,  and  that  property  is  adapted 
primarily  or  exclusively  to  the  use  so  forbidden,  there  is  a 
practical  deprivation  of  property.-''" 

In  the  application  of  constitutional  principles  the  courts 
should  regard  substance  and  not  form,  and  it  is  therefore 
necessary  and  proper  to  consider  the  natural  and  intended  ef- 
fect of  restrictive  measures  in  order  to  determine  whether  they 
constitute  regulation  or  prohibition.  To  allow  some  activity  or 
business  onl}-  under  conditions  so  burdensome  that  it  will  be 
inevitably  surrendered  or  abandoned,  is  virtually  to  prohibit  it. 

Such  a  virtual  prohibition  may  result  from  excessive  taxation 
or  license  fees.^^  That  the  number  of  dealers  will  be  reduced 
by  shutting  out  those  who  are  irresponsible  will  not  make  the 
regulation  prohibitive ;  but  if  the  exaction  is  so  large  as  to  be 
clearly  inconsistent  with  the  profitable  carrying  on  of  the 
business  in  question  in  any  form,  it  constitutes  prohibition. 

Prohibition  can  also  be  accomplished  by  burdensome  regula- 
tions of  other  than  a  financial  character.  The  clearest  illus- 
tration of  this  is  given  by  the  statutes  requiring  oleomargarine 
to  be  colored  pink.  If  courts  say  that  the  legislature  is  the 
sole  judge  of  the  propriety  of  a  regulation  of  this  character, 
they  simply  surrender  their  power  to  control  the  validity  of 
legislation.^-  The  United  States  Supreme  Court  sufficiently 
characterises  such  regulation  Avhen  it  says  "to  color  the  sub- 
stance as  provided  for  in  the  statute  naturally  excites  and 
strengthens  a  repugnance  up  to  the  point  of  a  positive  and 
absolute  refusal  to  purchase  the  article  at  any  price.  The  direct 
and  necessary  result  of  a  statute  nuist  be  taken  into  considera- 
tion when  deciding  as  to  its  validity,  even  if  that  result  is  not 
in  so  many  words  either  enacted  or  distinctly  provided  for.  In 
whatever  language  a  statute  may  be  framed,  its  purpose  must 
be  determined  bj^  its  natural  and  reasonable  effect.     Although 


50  To  prohibit  the  use  of  grain  for  nig,  72  Minn.  528;  75  N.  W.,  711;  ex 
distillation  into  liquor  is  upon  this  parte  McKenna,  126  Cal.  429,  but 
principle  mere  regulation  as  far  as  see  State  v.  Harrington,  68  Vt.  622; 
the  owner  of  the  grain  is  concerned.  State  v.  Foster,  22  E.  I.  163;  50  L. 
Ingram  v.  State,  39  Ala.  247;  84  K  A.  339;  ex  parte  Haskell,  112 
Am.  Dec.  782.  Cal.  412. 

51  See  Veazie  Bank  v.  Fenno,  8  52  State  v.  ^Marshall,  64  N.  H.  549; 
Wall  533;  State  v.  Moore,  113  X.  C.  State  v.  IMyers,  42  W.  Va.  822;  35 
697;    State  ex  rel   'SVmces  v.   Schoe-  L.  R.  A.  844. 


54  METHODS  OF  THE   '-"'.U.lCF  POWEE.  §59 

imder  the  Avordiug  of  the  statute  the  importer  is  permitted  to 
sell  oleomargarine  freely  and  to  any  extent  provided  he  colors 
it  pink,  yet  the  permission  to  sell  when  accompanied  by  the 
imposition  of  a  condition  which  if  complied  with  will  eft'ectii- 
ally  prevent  any  sale  amounts  in  law  to  a  prohibition. "•''•' 

j  59.  What  kinds  of  business  may  be  prohibited.— Lotteries, 
speculation,  liquor.  —  The  various  instances  of  prohibitory 
lejiislaliou  will  l)e  discussed  fully  in  their  proper  places.-'^'^  The 
correct  constitutional  principle  seems  to  be  that  a  business 
serving  valuable  economic  or  social  purposes  may  not  be  en- 
tirely prohibited,  because  it  is  attended  with  danger  or  liable 
to  abuse,  but  that  the  policy  of  prohibition  may  be  sustained, 
if  the  business  exists  only  for  the  gratification  of  pleasure,  or 
has  otherwise  no  legitimate  function."''^ 

Thus  the  prohibition  of  lotteries  is  not  questioned,  and  the 
constitutionality  of  jirohibitory  liquor  legislation  is  now  gen- 
i*rally  conceded,  there  being  only  one  case  in  which  it  was 
(.lirectly  tlenied.-'''^ 

But  dealings  in  stocks  and  produce,  even  for  future  delivery, 
though  extensively  used  for  gambling  purposes,  are  allowed 
since  they  are  of  great  econoinie  value  and  inipoi-tance.  The 
proiiibition  of  bucket  shops  is  directed  exclusively  against  ficti- 
tious transactions.-'"'  The  ])rovision  of  the  constitution  of  Cali- 
fornia api)arently  directed  against  all  transactions  in  stock  to 
be  delivered  jit  a  future  day  has  been  inter])reted  by  the  courts 
so  as  noi  io  iill'ect  legitimate  transactions.^'^  Tt  is  true  that  a 
statute  of  Illinois  has  ])een  sustained  forbidding  all  contracts 
Hocuring  oj)tions  in  any  kind  ol'  eomniodities  ;■'"'•'  but  the  legiti- 
mate uses  of  this  fotiii  <ii'  dealing  arc  i;irc  and  insignificanl  in 
numluT  as  comitai'd  with  I  he  cases  in  which  it  constitutes  a 
form  of  gaml)ling.  and  llicy  niiirhl  ])ossil)ly  be  saved  by  a  re- 
strictive interpretation  •)•'  the  jict. 

The  prohibitoi-y  lirjiior  legislation  nnit"onnl>'  makes  excep- 
tions in   favor  of  nicdicin.il.  saci-;i  mmmiI;!  I   and    nieclianical    uses, 

6»('ollinn   V.    Now    Hiimi>Hliirr,    171  r-'*  lioolic  v.  Slate,  <i   I  ml.  .'jOI,  ISSf). 

V    H.  .10,  IMm.  r-  IJJinoiH    Act    June   (i,    1.S87;    Cr. 

B«K.T    ii     1'tn  U»«,     l!t»-'JO:?,    '2\:\-  C.   i:i7a;  h.-c  §  l!()2,  infra. 

217.  r'M'jirkcr    v.    Otis,    130    Cal.    32'J ; 

'•'•Of   ronr«r   uIho    wlioro    it    in   in-  62  Pnc  r)71  ;   Otis  v.    I'arker,   1S7  TT. 

triniiinlly  iinninrnl  <>r  frini'lulfiif,  ho  H.  6fl(i. 

nil     lit     jmliniNfrv,     State     v.     Ki-iiil-  r-"  Hootii    v.     lVit|iic,     lS(i     ill.    •».'.: 

worth  (N,  .T.).  r»4  Atl.  'J»l.  I'.i.otli  v.   lllinoiH,  184  U.  H.  42.1. 


^{lO  i'];c)iiii;iTiu.\.  55 

and  there  is  no  doubt  that  these  exceptions  are  constitutionally 
required.^" 

§60.  Trading  Stamp  Business/'^— The  prohibition  of  the 
trading  stamp  business  has  been  declared  unconstitutional  in 
several  states,*'-  but  has  been  sustained  in  the  District  of  Co- 
lumbia as  involving-  an  element  of  gambling,''^  and  in  IMassa- 
chusetts  in  so  far  as  it  appeals  to  the  gambling  instinct,  but 
not  otherwise."^  It  is  difficult  to  see  how  the  business  can  be 
treated  as  a  form  of  gambling,  but  it  may  be  conceded  that  it 
serves  no  useful  purpose  ;  and  if  it  is  conducted  so  as  to  defraud 
the  public,  the  policy  of  prohibition  must  be  placed  upon  that 
basis.  The  argument  against  the  validity  of  its  prohibition 
proceeds  upon  the  ground  that  the  business  furnishes  a  legiti- 
mate device  to  attract  custom,  and  that  the  hostile  legislation 
is  merely  protection  against  competition— a  purpose  for  which 
the  police  power  cannot  be  exercised. 

§  61.  Ticket  Brokerage."'^  — The  prohibition  of  ticket  broker- 
age (^ anti-scalper's  legislation)  has  been  upheld  in  Illinois,  Indi- 
ana, Pennsylvania,  and  Minnesota,  and  has  been  declared 
unconstitutional  in  Ncav  York  and  Texas.*^<*  The  legislation 
was  undoubtedly  intended  as  a  protection  against  fraud;  but 
none  of  the  decisions  can  be  taken  as  a  clear  adjudication  either 
that  the  danger  of  fraud  may,  or  that  it  may  not,  be  met  ))y 
the  absolute  prohibition  of  the  business.  In  Illinois  the  pro- 
hibition was  sustained  on  the  ground  that  the  sale  of  tickets 
was  merely  an  incident  to  a  business  affected  with  a  public 
interest,  and  therefore  subject  to  the  like  ample  legislative 
control  as  the  latter.  In  New  York  the  earlier  statute  was  held 
invalid  because  it  in  effect  granted  a  monopoly,  in  Texas,  be- 

coSarrls  v.  Commonwealth,  83  Ky.  wealth  v.  Sisson,  178  Mass.  578;  CO 

327;    Commonwealth    v.    Fowler,    96  N.  E.  385. 

Ky.  166.     See  §  222-224,  infra.  cs  See  §  291. 

61  See  §  293.  ''■"  Burdick  v.  People,  149  111.  600 ; 

«2  State  V.  Dalton,  22  Rh.  1.  77;  48  State  v.  Corbett,  57  Minn.  345;   Fry 

L.  E.  A.  775;  Young  v.  Com.  (Va.),  v.  State,  63  Tnd.  552;  Commonwealth 

45  S.  E.  327;   People  v.  Dycker,  72  v.    Keary,    198    Pa.    500;    People   ex 

App.  Div.    (N.   Y.),   308;    76  N.  Y.  rel    Tyroler   v.    Warden,    157    N.   Y. 

Suppl.  111.  116;   51   N.  E.   1006;   People  ex  rel 

«3  Lansburgh  v.  District  of  Colum-  Fleischman  v.  Caldwell,  64  App.  Div. 

Gia,  11  App.  D.  C.  512.  46;    71    N.   Y.   Suppl.   654;    affirmed 

64  CommonweaWi  v.  Emerson,  165  61  N.  E.  1132;  168  N.  Y.  671;  Jan- 
Mass.  146;  42  N.  E.  559;   Common-  nin  v.  State,  51  S.  W.  1126   (Tex.). 


5tj  METHODS  OF  THE  POLICE  POWEK.  55  62 

L-ause  it  vested  the  railroad  companies  with  dispensing-  powers.^" 
The  Texas  court  seems  to  reirard  prohibition  in  this  matter 
otherwise  as  lawful;  the  Indiana  court  quotes  "without  in  any 
wise  endorsing"  from  counsel's  brief  to  the  effect  that  the 
legislature  may  strike  at  a  business  giving  rise  to  extensive 
frauds  by  prohibiting  it  altogether;  on  the  other  hand  the  New 
York  court  says  that  while  stringent  rules  may  be  enacted  to 
punish  those  who  are  guilty  of  dishonest  practices,  it  is  beyond 
llio  legislative  poAver  to  cut  up.  root  and  branch,  a  business 
that  ma}'  be  honestly  conducted  to  the  convenience  of  the  pub- 
lic and  the  profit  of  the  persons  engaged  in  it. 

;:;  62.  Oleomargarine  legislation."'^  — The  nu)st  conspicuous 
instance  of  the  prohibition  of  a  useful  industiy  is  to  be  found 
in  the  legislation  against  oleomargarine.  Statutes  forbidding 
the  numufacture  and  sale  of  any  article  made  of  oleaginous 
substance  or  compound  other  than  milk  or  cream,  designed  to 
take  the  ])huH*  of  butter,  have  been  upheld  in  several  states, 
inchidiiig  Pennsylvania,'"'''  ^Maryland.""  and  Minnesota,'' 
and  the  Penn.sylvania  decision  has  been  confirmed  by  the  !Su- 
prcme  Court  of  the  United  States."-  Hul  the  Supreme  Court 
in  subs('(|u<'nt l\'  declaring  the  proliihit ion  in\ali(l  for  purposes 
of  intcrstati'  coiiiiiii'i-ci'' •■  h;is  cast  considerable  doubt  upon  the 
sountlncss  of  its  earlier  ruling,  and  the  statutes  in  (piestion 
having  been  repealed,  no  state  a1  present  adheres  to  the  policy 
of  prohibition.  Tlie  tlevelopment  of  the  law  has  thus  vindi- 
cated the  position  assumed  l)y  the  Court  of  Ajjpeals  of  Xew 
York,  wiiich  in  declaring  the  prohibitiiui  invalid,  said:  "Who 
will  have  the  temerity  t(t  say  that  these  constitutional  prin- 
ciples are  imt  \iolale(l  by  an  fiiaet  nieiil  which  absolutely  pro- 
hibits an  iinporlant  branch  of  iiidiislcy  foi-  the  sole  reason  that 
it  competes  with  another,  and  may  reduce  the  price  (d'  an  arti- 
clf  of  food  for  till'  hiinian  race.'"""' 

It  was  assuMictl  that  frandnlent  imitations  of  bnfti'r  were 
.salisfactorily   gnardi'd   airainst    by   otJH'c   legislation.      The   |)fo- 

Am    til    thiH   HPO   jiIhii    .\II.O"1i    \.  ''  Mullir    v.    ( 'liamhcrs,    '.W    Minn. 

ivopi..,  11(7  III.  .''lOi ;  (u  N.  E.  r>;w.       (ij». 

•"•HtMi   8    ->*.'{.  Ta|'„wrll    V.    l*.MinHvlv:nii:i,    1'J7    U. 

•»»  I'owpII    V,    CrtmtiKinwciilili.     Ill      S.   r»7S. 
1.1    Si,  'JOr»,  ';i  ScJinlli'iiliiTyor    V.    PciniHylvuiiiii 

■"  WriKlif    V.    .SiHtc,    88    M.l.     »:»$;      171  T.  S.   I. 
•«'    ^'l    "M.  ■•  IV(i|)lc   \.    AUox,   '.111    X.    V.    :577, 

1885. 


§  g;j  eeasonableness.  57 

hibition  of  the  manufacture  of  oleomargarine  in  semblance  of 
yelloAv  butter  -is  uniformly  upheld  and  is  conceded  by  the 
Su])reme  Court  of  the  United  States  to  be  a  lee;itimate  police 
measure  though  ali'ecting-  interstate  commerce.'"'  This  pro- 
liibition,  it  will  be  observed,  leaves  the  industry  intact,  and 
strikes  merely  at  a  practice  not  essential  to  it. 

Since  the  repeal  of  the  prohibitory  oleomargarine  legislation 
llie  preponderance  of  legal  opinion  and  practice  seems  \n  Ix' 
against  the  prohibition  of  useful  forms  of  industry  and  t)iisiiiess 
sim])ly  l)ecause  there  is  a  liabilily  to  the  peri)etration  of  fraud. 
The  doubts  concerning  the  validity  of  this  kind  of  prohibitory 
legislation  are  strengthened  by  the  fact  that  it  is  generally  used 
for  the  protection  of  rival  industries. 

Even  the  danger  to  health  or  safety  should  not  justily  llie 
absolute  prohibition  of  a  useful  industry  or  i)ractice  wbei-e  the 
danger  can  be  dealt  with  by  regulation,  and  this  principle  has 
l)een  enforced  against  the  exercise  of  municipal  ordinance 
power.'^^ 

THE  PRINCIPLE  OF   REASONABLENESS." 

§  63.  It  is  a  well  established  principle  that  municipal  police 
ordinances,  like  all  other  municipal  ordinances,  nnist  l)e  rea- 
sonable in  order  to  be  lawful."^  The  Supreme  Court  of  the 
United  States  has  declared  it  to  be  an  ancient  jurisdiction  of 
judicial  tribunals  to  pronounce  upon  the  reasonableness  and 
consequent  validity  of  the  bye-laws  of  inferior  municipal 
bodies,"'^  the  "inferior  municipal  body"  in  the  case  cited  being 
the  Boa  I'd  of  Supervisors  of  the  County  of  San  Francisco.  It 
is  possible  to  say  that  there  is  implied  in  every  delegation  of 
power  to  a  municipal  corporation  a  condition  that  the  power 
nnist  be  exercised  reasonably,  and  that  therefore  every  uin-ea- 
sonable  ordinance  is  ultra  vires,  and  the  court,  in  treating  it 
as  null  and  void,  merely  enforces  the  legislative  will  and  prin- 
ciples of  policy  embodied  in  it. 

If  the  courts  undertake  to  declaj-e  a  statute  void  on  the 
ground  that  it  is  unreasonable,  they  must  assume  the  existence 

"r>  Plumley    v.    Massachusetts,    155  "See  also   §S  14-.    150,    178,   316, 

TT.  S.  461,  1894.  ?.79-386,  397,  449,  516.  .550-554. 

Til  Greensboro     v.     Ehrenreicli,     SO  ^r  Dillon    Municipn]    ('(iriKPiations, 

Ala.  579,  second  hand  clothing-;  Com-  §   319. 

momvealth  v.  Parks,  155  Mass.  531,  "'•'  Yick  Wo  v.  Hoi)kins,  118  U.  S. 

blasting  of  rocks.  356,  1886. 


58  MKTHODS  OF  THE  POLICE  POWEK.  §  63 

of  a  standard  of  reasonableness  whieli  is  above  legislative 
policy.  Do  our  constitutions  embody  such  a  standartl  of  rea- 
sonableness? 

In  discussing  this  question  we  nuiy  safely  discard  all  argu- 
ments drawn  from  the  assumption  that  unreasonable  means 
absurd  or  plainly  arbiti;ir\- ;  statutes  which  deserve  that  desig- 
nation are  not  nuidi  more  ajit  to  occur  than  judicial  decisions 
of  the  like  character.'"' 

If  on  the  other  hand  reasonable  is  understood  to  UK^nn  well 
atlapted  to  the  end  in  view,  thei-e  is  practically  no  judicial 
claim  to  control  the  judgment  of  the  legislature  of  what  is  rea- 
sonable. The  courts  are  certainly  emphatic  in  their  assertion 
that  they  have  nothing  to  do  with  the  wisdom  or  expediency 
of  legislative  measures. 

The  question  of  judicial  power  pr.ictically  coniines  itself  to 
a  third  meaning  of  reasonableness,  namely  modei-ation  and  i)i'o- 
portionateness  of  means  to  ends.  The  earliei-  attitude  of  the 
courts  seems  to  have  l)een  that  if  il  w;)>  ackii(n\-ledgeil  thai  ;i 
condition  consisted  I'oi'  legislative  ;i('tioii,  the  legislature  was 
sole  and  conclusive  judge  (under  siiecilie  constitutional  limita- 
tions) to  \\\\;\\  degree  its  ])OWer  slioiiM  be  exei'eised.  So  it  was 
said  ill  l>ro\vii  v.  .M;ir\land  r"^'  "(^{iicsl  ions  of  power  do  not 
<lei)end  upon  lln'  degree  to  which  it  iii;i\'  be  exercised.  If  il 
may  be  exel-eised  ;it   ;ill.  it    liillsl   be  exeivised  at    tile  will  of  those 

in  whose  hands  it  is  pliiceij."  This  decision  related  to  the  tax- 
ing power:  but  similar  expressions  ;ire  used  with  reference  to 
tile  police  power.  So  ill  the  nint tcj-  of  the  rcLiiii.it  ion  of  clnii-ges  : 
"We  know  tlnil  this  is  a  |io\\<'r  which  iiuiv  lie  abused;  but  that 
is  no  artriimeiit  against  its  existence.  I^'or  protection  against 
libuscs  by  Legisliit  iires  the  pedple  Hiiist  Tcsort  to  the  polls,  not 
to  the  courts.  "'*-  And  in  I  he  same  c;ise  t  he  eonrt  s;iys:  "It  is 
insisted  th.il    what    is  I'casoiialih'  is  a  jiniicial.  and  not 

a  legisJHlivc  qneslion.  .\s  has  already  been  shown,  tin-  jirac- 
tice  has  been  otherwise."'  .Vi^aiii.  in  a  re<-ent  case:  'Xo  law 
which  infrinL'es  aii.v  of  the  natural  riLdils  of  nian.  can  lone  be 
enforced.  I'liiicr  oni'  system  of  go\  I'lnmenl,  the  reineily  ol'  Ihe 
people,  in  thai  class  of  cases  where  Ihe  conrts  arc  not  aiilhor- 
i/,ed  to  iiilei-rcn'.  is  in  the  ballot  iiox.  .\iiy  law  which  \iolates 
rcMMon,  and   is  conlrai-y   to  the   |iii|piilar  c(pni-e|)l  ion  ol'  right    and 

»"TliJif     HliilntcH     iiimI     (»riliiiiini'i'M  *•'  iL'    Wli.    Il'.i. 

f»l:nii|(l    bo  no   coiiufnicMl    nH   t(»   uvoiil  "'^  Mnnn  \.   Illinois,  !•!   I".  S.   1  1 ;'.. 

nhminl  ronHfH|iH>nc<ii,  hoc  8  l-''^- 


^  (;;j  REASONABLENESS.  59 

justice,  will  not  romaiii  in  operation  for  any  lenj^th  of  time;  hut 
courts  have  no  autliority  to  declare  it  void  merely  hccausc  it 
does  not  measure  up  to  their  ideas  of  abstract  justice. "^•= 

As  a  rule,  howevei",  at  the  present  da\',  an  unlimited  extent 
of  lejiislative  power  in  this  direction  is  nssumed  only  for  pur- 
poses of  argument,  a  moderate  exercise  of  powei'  hcini;  lirld 
void  (ui  the  ground  that  if  conceded  it  might  be  eniTietl  to  ex- 
cessive lengths.  So  in  the  case  in  which  the  fhig  legislation  of 
Illinois  w.is  declared  unconstitutional,  one  ol'  the  arguments 
relied  upon  by  the  court  was  that  if  the  legislature  might  i)ro- 
hibit  the  use  of  the  tlag  for  one  purpose,  it  might  forbid  it  rm- 
all  purposes,^'*  an  argument  which  loses  all  force  if  the  courts 
control  the  degree  to  which  a  power  may  be  exercised. 

The  Supreme  Court  of  Illinois  had  asserted  the  right  to  con- 
trol the  proportionateness  of  means  to  ends  very  strongly, 
when  in  annulling  an  ordinance  requiring  railroad  companies 
to  keep  flagmen  at  every  railroad  crossing,  it  said  that  it  would 
treat  the  question  as  if  the  city  had  all  the  powers  which  the 
state  has  for  the  welfare  of  the  people,  implying  th.it  a  similar 
statute  would  have  been  declared  void  for  unreasonableness.^"' 
Other  leading  courts  have  stated  very  distinctly  that  reason- 
ableness is  one  of  the  inherent  limitations  of  the  police  power; 
so  the  Supreme  Court  of  ^lassachusetts :  "Difference  of  degree 
is  one  of  the  distinctions  by  which  the  right  of  the  legislature 
to  exercise  the  police  power  nnist  be  determined.  Some  small 
limitations  of  previously  existing  rights  incident  to  i)roperty 
may  be  imposed  for  the  sake  of  preventing  a  manifest  evil. 
Larger  ones  could  not  be  without  the  exercise  ef  the  right  of 
eminent  domain, "'^"  and  the  Supreme  Couii  of  the  United 
States:  "A  statute  or  a  regulation  i)rovided  for  therein,  is 
frequently  valid,  or  the  reverse,  according  as  the  fact  may  be. 
whether  it  is  a  reasonable  or  an  unreasonable  exercise  of  legis- 
lative power  over  the  subject  mattei-  involved,  iiiid  in  Humy 
cases  questions  of  degree  ;ire  the  controlling  ones  by  whieh 
to  determine  the  validity,  or  the  reverse,  of  legislative  ac- 
tion, "^'*"  and  in  Plessy  v.  Ferguson, '''^  in  answei-  to  tlu^  conleii- 

83  Morris    v.     Columbus,     102    Oa.  sc,  Riaeout  v.  Kmi.x.  148  Mass.  .".tiS. 

792;  42  L.  R.  A.  175.  s7  Wisconsin  M.  &  P.  K.  R.  Co.  v. 

s+Ruhstrat  v.  People,  185  Til.  i:C>;      Jai-obson.   179  T^.  S.  287,  1000. 
49  T..  R.  A.  181  ;  57  N.  E.  41. 

'^■"'  Toledo    &e.    R.    Co.    v.    Jackson- 
ville, (i7  Til.  37. 


(jO  METHODS  OF  THE  POLICE  POWER.  §  G3 

tiou  that  the  principle  of  separation  might  be  carried  to  the 
length  of  assigrniny:  to  black  and  white  different  quarters  of  the 
city  for  living  or  different  sides  of  the  street  for  walking,  the 
Supreme  Court  said:  "The  reply  to  all  this  is,  that  every 
exercise  of  the  police  power  must  be  reasonable."  And  in  the 
matter  of  the  regulation  of  charges,  the  Supreme  Court  has  en- 
tirely abandoned  the  attitude  expressed  in  ]Munn  v.  Illinois 
that  the  remedy  for  an  abuse  of  the  ]>0Aver  must  be  sought  al 
the  polls  and  not  in  the  courts.  After  declaring  in  the  Railroad 
Connnission  cases,^'-^  that  the  power  to  regulate  is  not  a  power 
to  destroy,  the  court,  in  Reagan  v.  Farmer's  Loan  &  Trust  Co.'^" 
said  distinctly :  "There  can  be  no  doubt  of  the  power  and  duty 
(of  the  courts]  to  inquire  whether  a  body  of  rates  imposed  by 
a  legislatui'c  or  a  commission  is  unjust  and  unreasonable,  and 
such  as  to  work  a  ])ractical  destruction  of  rights  of  property, 
and  if  found  so  to  be,  to  restrain  its  operation."  In  Covington 
ike.  Turnpike  Road  v.  Sandford,'"  the  power  of  the  court 
to  inijuire  into  the  reasonableness  of  a  legislative  rate  was  re- 
garded as  establish(Hl  beyond  cpiestion,  and  in  Lake  Shore  and 
.Michigan  Southei-n  K.  U.  Co.  v.  Smith"'-  a  rate  fixed  by  statute 
was  liwld  to  ])(•  unconstitutionjil. 

Effective  judicial  limitations  of  the  police  poAvei-  would  be 
impossible,  if  llir  legislature  Avcrc  the  sole  judge  of  the  neces- 
sity of  tile  measures  i1  I'lijictccl.  The  only  ((uestion  a  court 
could  then  ;is]c  in  dealing  \v\\\\  ijolicc  legislation,  would  be: 
doi's  a  coiitiilion  exist  which  juslilics  any  legislal  ivc  aclion.' 
lint  the  maiiitcnaiiiM'  ol'  private  rights  luidcr  tlu'  ii'([uiri'nien1s 
of  the  |»nblic  welfai'e  is  a  question  of  pro])ortionateiu'ss  of 
nii'asures  entirely.  Liherl.\-  and  i)ropei'1y  yield  to  the  police 
power-.  Iiiit  not  to  tlie  |i(iiiii  of  (lesl  I'licl  ion.  While  an  (\xcessive 
degree  of  im|)aii-nient  would  as  ;i  rule  be  conti'iii'v  to  legislative 
jiK  well  as  to  conslitut  ioii.il  pnlicy.  the  liistor.\-  of  the  i-cgulation 
of  niilr«»ad  charges  has  shown  that  the  <|ucstion  of  the  indirect 
and  perhaps  nnintende<|  dcslrnction  (»f  private  i-i^lit  ina.v  be- 
ennii'  an  important  and  extremely  diflicnlt  issue  for  determina- 
tion. In  reserving  the  conclusivi-  detei  minMt  ion  of  this  issue  to 
flieniMclvcH,  the  courts  have  lirnily  esl;d)lishe(l  the  principle 
thlit  till'  duty  of  the  reasonable  exercise  of  the  iiojice  powei-  is 
n  coiistifnf ionul  limilati(ui  n|>on  the  letrislalure.     There  are  few 

-  iir;  I',  s.  :{(i7,  m  104  tt.  S.  .its. 

«"■  i-.i  I-  y  :w^.  U2  i7r<r.  s.  (5.S4. 


^  w 


REASON  ABLKX  K^S. 


61 


forms  of  control  that  cannot  become  unreasonable  by  an  ex- 
cess of  degree ;  and  there  are  many  cases  where  no  otlu-i-  prin- 
ciple of  limitation  is  discoverable  than  that  of  reasonableness, 
so  in  legislation  fixing  hours  of  labor,  or  requiring  improve- 
ments or  arrangements  for  public  convenience  on  the  part  of 
public  service  companies.^ ^ 

The  question  of  reasonableness  usually  resolves  itself  into 
this:  is  regulation  carried  to  the  point  Avhere  it  becomes  pro- 
hibition, destruction,  or  confiscation  .'  The  effect  of  carrying 
police  legislation  to  that  point  will  be  discussed  in  connection 
with  the  particular  cases  in  which  the  question  has  practically 
arisen. 


!'3  Common  law  as  well  as  statu- 
tory obligations  are  subject  to  this 
coiulition  of  reasonableness.  Thus, 
if  a  public  ser^^ce  company  is  re- 
quired to  maintain  its  service,  it 
should  be  enabled  by  the  state  to  do 
so  on  terms  not  ruinous  to  its  busi- 
ness. It  has  been  saiil  ' '  the  duties 
imposed  must  be  discharged  at  what- 


ever cost."  People  v.  N.  Y.  Central 
£c  H.  E.  R.  Co.,  28  Hun  543;  see  also 
Savannah  &c.  Canal  Co.  v.  Shuman, 
91  Ga.  400.  But  the  law  cannot  re- 
quire a  corporation  to  keep  its 
charges  at  figures  which  are  perma- 
nently unprofitable;  see  §§  548-554, 
infra. 


CHAPTER  III. 
THE    FEDERAL   GOVERNMENT    AND   THE  POLICE  POWER. 

§64.  Police  power  in  a  federal  state.  — In  the  distribution 
(Vf  trovt'riumntai  powers  luider  the  federal  constitution,  the 
bulk  of  the  poliee  poAver  remains  with  the  states.  The  framers 
of  the  constitution  of  the  United  States  proceeded  upon  the 
principle  that  the  restrictive  control  and  care  of  social  and 
economic  interests  should  be  left  with  the  member  states  ex- 
cept where  diversity  of  rejjulation  wouKl  l)e  an  impediment  to 
national  development.  In  Germany  ami  Switzerland,  the 
greater  compactness  of  territory  and  the  closer  connection 
l)etween  the  different  parts  of  the  federation  at  the  time  of  the 
adoption  of  their  respective  constitutions  required  and  justi- 
lied  greater  consolidation  and  control.  Thus  in  Germany  the 
empire  has  power  to  lejjislate  in  matters  of  trade  and  has 
•  •nacted  an  elaborate  trade  code  establishing  the  principle  of 
tlir  frcdom  of  trade  and  containing'  a  considerable  amount  of 
{irott'ctivc  labor  Icirislation.  and  the  Swiss  constitution  ijuaran- 
tees  till'  iiiDst  impoi-tant  social  and  political  riiz:hts  (freedom  of 
reli^jion,  of  speech  and  press,  of  associations,  right  of  settle- 
irierit,  right  to  free  and  non-sectarian  education,  secrecy  of  the 
mails,  i'\eiiij)l  ion  li-oni  imprisonment  for  debt  and  from  cor])o- 
ral  punishment)  against  the  action  ol  the  cantons,  while  the 
United  States  protects  similar  i-ights  and  iiuiiiunities  only 
against  federal  legislation.  li;i\iiig  ijic  states  I'l-ee. 

Tlic  redri-;il  control  ol'  legislation  concerning  llic  internal 
public  welfare  is  twofold,  consist  ini:'  either  in  ilie  cnai-tnient 
of  positive  measures  oi-  in  the  prevention  ol"  i-estrielive  state 
laws.  Positive  federal  legislation  also  ojx'rales  as  a  restraint 
u|)on  the  stales,  sijice  federal  statutes  ovcffide  state  laws  con- 
tlicting  with  tliein:  but  the  restraint  upon  llic  sl;iles  may  be 
unaecoiiipMiiicd  by  positive  fedei'al  measures.  I  he  result  being 
abHeiice  f>f  ret;ulatioii  :ind  coiisc((iicnt  ly  lilierty. 

\       l'f)SFTIVK    rul,I<K    l.i;(;lsl>.\Tl()\    OF    'I'lIK    I'KDKlv'.X  1-    COV- 

i;i{.\MK\T.     §f,.l.n7. 

..'65.     The  federal  exercise  of  till-  police  jtowcr  lluvnigh  posi- 

tivi"  Ipgisbition  rests  upon  ll nuniei;iler|  jxiwcis  of  ('ongi-ess 

under  the  constitution.      The   prnicip.il    p(n\«'r   looking   to   the 

02 


i;  (;<;  KllUKKAI.   I'OLKi:    LIU  :  ISLA'I'KJ.X.  (J3 

promotion  of  the  internal  pul)lic  welfare  is  that  of  rf^Milatin*; 
commerce  with  foreign  nations  and  anion^-  Ww  states.  The 
power  to  regulate  commerce  includes  the  power  to  ptuliiliit 
and  suppress  objectionable  forms  of  traffic.^  Under  this  powc^r 
Congress  has  also  legislated  regarding  shipping  and  navigation, 
interstate  common  c;ii"riers,  Mud  combinations  in  restraint  ol' 
trade.  A  combination  of  the  i)owcr  over  foreign  connuercc 
and  the  taxing  power  is  found  in  the  tariff  legislation  of  the 
United  States,  while  the  contract  labor  law  of  1885,  tlie  innni- 
gration  law  of  1908,  and  the  legislation  excluding  vessels 
built  abroad  or  owned  by  non-residents  from  American  regis- 
try and  from  the  coasting  trade,-  should  be  assigned  to  tlic 
power  of  territorial  sovereignty. 

The  power  over  coinage  and  over  weights  and  measures  has 
been  expressly  conferred,  but  the  latter  has  not  been  exercised. 
In  a  sense  the  power  to  legislate  regarding  bankruptcies,  and 
patents  and  copyrights,  may  be  assigned  to  the  internal  police. 
Certain  forms  of  business  are  dealt  with  in  ilic  exercise  of  the 
taxing  power  so  the  sale  of  liquor  and  of  oleomargarine.  The 
control  of  post  offices  and  post  roads,  intrinsically  a  corporate 
power,  is  used  for  tlu^  suppression  of  lotteries  and  of  obscene 
and  fraudulent  matter.  By  virtue  of  its  general  sovereignty 
the  United  States  may  take  such  measures  as  are  necessai'y  to 
insure  peace  and  order  in  the  performance  of  any  of  its  func- 
tions.-' 

v^  66.  Commerce  and  Navigation.'— In  view  of  all  this  legis- 
lation, it  is  impossible  to  deny  that  the  federal  government 
exercises  a  considerable  police  powei-  of  its  own.  This  police 
power  rests  chiefly  upon  the  constitutional  power  to  i-egulate 
commerce  among  the  states  and  with  foreign  nations,  but  not 
exclusively  so.  Thus  the  control  over  navigation  is  based  upon 
the  grant  of  admiralty  and  maritime  jurisdiction  and  applies 
to  vessels  sailing  betwanm  two  i)orts  of  the  same  state."'  It  has 
been  said  that  a  ship  sailing  from  San  Francisco  to  San  Diego 
enters  upon  a  navigation,  and  therefore  upon  a  commerce, 
necessarily  connected  with  other  nations;  "she  Avas  navigating 
with  them  [the  vessels  of  other  nations],  and  consequently 
with  them  was  engaged  in  connnerce.'''^    But  Avhile  thus  strain- 

1  Lottery  Case,  188  U.  S.  321.  *  See  §§  341,  3412,  407. 

2  Rev.  Stat.  Title  48.  •'In  re  Garnett,   141  U.  S.  1. 

:?  Ex  parte  Siebold,  100  IT.  tS.  371 ;  c  Lord    v.   SteamslHp    Co..    102   U. 

Ill  re  Dobs.  15S  U.  8.  r^(i4.  S    541. 


(54  FEDEKAL  UOVEEXMENT.  §  67 

ing  the  sense  of  the  commerce  clause,  the  decision  clearly  inti- 
mates that  navigation  of  the  high  seas  must  be  subject  to 
federal  law  because  it  is  national  or  international  in  character, 
and  "vve  may  say,  according  to  the  language  of  Justice  Wood- 
bury in  the  Passenger  Cases,  that  "the  police  of  the  ocean  be- 
long to  Congress.""  It  must  now  also  be  regarded  as  firmly 
established  that  the  power  over  commerce,  while  primarily  in- 
tended to  be  exercised  in  behalf  of  economic  interests,  may 
be  iLsed  for  the  protection  of  safety,  order  and  morals.^^  This 
seems  to  have  been  doubted  formerly,  for  it  is  said  that  when 
the  general  government  prohibited  the  import  of  obscene  prints 
in  th<^  tariff  of  1842,  it  was  a  novelty,  and  was  considered  by 
soiiic  more  ])roperly  to  be  left  to  the  states." 

$  67.  Indians  and  territories.— The  United  States  has  exer- 
cised ail  amjile  police  power  over  Indians  partly  under  the 
commerce  clause  of  the  constitution,^'^  partly  under  the  power 
to  make  regulations  for  the  government  of  territories,  partly 
under  reservation  of  national  control  of  Indian  lands  contained 
in  the  acts  enabling  territories  to  become  states.  The  United 
States  is  vested  by  the  constitution  with  the  fullest  police 
power  over  territories,  and  with  regard  to  Alaska  this  power 
has  been  exercised  to  a  consideral)le  extent.  With  regard  to 
•  ithi'P  organized  territories,  the  policy  of  the  government  has 
always  Ix'en  to  leave  llie  iiileriial  ])oliee  entirely  to  tlie  territo- 
r-ial  lejrisjatures,  the  only  notable  exception  being  the  legisla- 
tion for  the  sui)pression  of  jiolygamy.  In  the  District  of  Co- 
lMnii)ia.  CotiLM-iss  pi'i'Toi'iiis  all  funetions  of  state  and  local 
legislation.  In  llie  control  oi'  public  places  and  buildings 
acijuired  I'or  irdrial  purposc^s  a  cession  of  juiMsdiction  by  the 
Htnte  would  oust  its  police  power:  it  has  also  hovu  held  thai 
where  Congress  had  (imIciI  the  jurisdiction  over  grounds  occu- 
pied by  a  Soldiers"  Ilnnie  tiaek  to  the  state,  yet  th(^  oleomarga- 
rine laws  of  the  state  cannot  control  the  managing  |)owers  of 
th«"  fcflcral  u'«»vern(M'  of  the  honse  acting  under  authority  of 
Coni:reHK.  not  at  least  to  the  extent  of  ai-rcsting  or  punishing 
hii?i.  since  the  act  of  retrocession  saverj  tlie  corporate  |)()wer-s 
<>\   the  lioani  of  uiaiuigerH.' ' 

T  7  How.  523.  iMTnito.l     Htntcs     v.     Tlolli.lfiy,     3 

•Chnmpion    v.    Amen,  1SS    V.    S.      Wiiil.    407;    Same    v.    i:!    (iMllmiH    of 

rt'Jl    (I.«itt«Ty  Cnur).  Wliiskr,v.  l*."^  U.  S.   1HH. 

•r,  How.  rtan.  n  ohi..  v.  ThomnH.  17.T  V  S.  l.'7(i. 


§  68  FEDERAL  UUVEK.XMENT. 

B.     CONTROL    OVER    STATK    POLICE   POWER.     §  GH-S;!. 


65 


§  68.  The  [nnx'\y  restrictive  or  ne^-ative  influence  ol'  tlie 
federal  constitution  upon  the  police  power  of  the  states  is 
more  important  than  the  positive  police  legislation  of  Congress. 
A  deliberate  purpose  to  place  the  state  police  power  under 
federal  control  can  hardly  be  attributed  to  the  framers  of  the 
constitution.  The  prohibitions  upon  state  legislation  con- 
tained in  the  original  constitution  are  directed  against  inva- 
sions of  vested  rights  by  retroactive  statutes  ;i2  the  first  ten 
amendments  apply  only  to  the  federal  government  itself;  the 
thirteenth  amendment  interfered  vitally  with  the  police  power 
of  the  states,  but  only  as  to  the  specific  institution  of  slavery. 
The  fourteenth  amendment  and  the  commerce  clause  are  at 
present  chiefly  relied  upon  as  cheeks  upon  the  police  power 
of  the  states. 

1.     THE  FOURTEENTH   AMENDMENT. 

§  69. — The  fourteenth  amendment,  guaranteeing  due  process 
of  law  and  the  equal  protection  of  the  laws,  is  capable  of  aii 
interpretation  subjecting  all  state  legislation  to  a  federal  con- 
trol nearly  equal  in  scope  to  that  noAv  exercised  by  the  state 
courts,  and,  of  course,  superior  to  the  latter.  The  view  ex- 
pressed in  the  Slaughter  House  Cases  that  the  chief  applica- 
tion of  this  clause  would  be  found  in  the  protection*  of  the 
negro,  has  practically  been  abandoned.  In  the  various  railroad 
rate  cases  the  Supreme  Court  has  used  the  fourteenth  amend- 
ment to  control  the  police  power  of  the  state,  if  not  as  to  the 
subjects  of  its  exercise,  yet  as  to  the  extent  of  permissible 
restraint;  in  several  other  cases  the  equality  clause  has  been 
made  the  ground  for  declaring  legislation,  discriminating 
against  classes  of  corporations  or  of  business,  to  be  unconsti- 
tutional. It  is  moreover  a  most  significant  fact  that  there  i?. 
hardly  any  important  police  legislation  which  is  not  questioned 
in  the  Supreme  Court  as  violating  the  Fourteenth  Amendment, 
and  the  Supreine  Court  entertains  such  jurisdiction  and  ex- 
amines the  merits  of  the  claim.  It  is  true  that  the  Supreme 
Court  has  generally,  in  cases  coming  from  the  state  courts, 
upheld  the  statutes  attacked,  and  has  taken  on  the  whole  the 
position  that  the  judgment  of  the  state  legislature  as  to  the 

12  Legal    tender    of    inferior    cur-     pairing  the  obligation   of  contracts, 
rency,   ex  post   facto  laws,  laws  im- 


^^  FEDERAL  CiOVERNMEiXT.  §  70 

requireinonts  of  the. public-  welfare  will  be  taken  as  conclusive 
against  the  claim  of  liberty,  })r()perty  oi-  e(}uality.  In  this  its 
attitude  ditt'ers  not  only  from  that  of  the  state  courts,  but  also 
from  its  own  attitude  toward  state  legislation  where  it  is  im- 
peached on  the  ground  of  its  interfering  with  the  freedom  of 
commerce.  The  same  U'gislation  has  been  upheld  as  an  exer- 
cise of  the  domestic  police  pow(>r  which  has  been  condemned 
as  interfering  with  the  freedmii  of  coiuiuei'ce.''*  The  commerce 
clause  is  therefore  now  used  as  the  principal  check  upon  the 
police  power  of  the  states.  Its  operation  is  of  such  importance, 
as  to  require  a  separate  examination.  It  will,  however,  be 
noted  that  it  is  framed  as  a  power  of  i)ositive  legislation,  and 
not  as  a  restraint  upon  the  states,  specific  restraints  upon  the 
states  being  found  in  ihe  prohibition  of  duties  upon  exports 
and  inipiU'ts.  IJy  interpreling  the  federal  ])ower  as  exclusive,^'* 
tlie  yupreme  Court  has  hki.Io  it  j)ossible  lo  ainiul  state  legisla- 
tion relating  to  coiinnerce.  and  has  established  fi-eedom  of 
commerce  throughout  tlic  I'liion  witliout  tlie  aid  of  congres- 
sional legislation  to  that  effect.  "The  constitution  does  not 
provide  that  interstate  comiiuM-cc  shall  l)e  fi'ee.  l)ut  liy  the 
grant  of  this  exclusive  ])owt'r  to  i-egulate  it,  it  was  left  free 
except  as  Congress  might  impose  restraints.'"'-"'  Tlu^  result  is 
in  accordance  with  tiw  |)i-inciple  of  federal  government  which 
l)rings  about  an  enlargement  of  liberty  with  a  consolidation  of 
])olitical  |>o\vei'  over  foi'iiiei'ly  distinct  ctuimiunities. 

2.     'I'lli:  coMMKK'ci:  CI^.M'SK.     §70-85. 

5i  70.  Different  subjects  of  legislation,  it  is  a  finidamental 
principle  of  ihe  rehilion  between  the  comniei'ce  clause  and  the 
police  power  <pf  the  slates  that  any  legislalion  enacted  by  Con- 
gress undci-  the  power  to  i-egula1e  comniei-ce  supei'sedes  any 
legislation  inconsistent  with  it  i'naete(|  by  a  state  in  the  exer- 
cise of  the  jiolice  power."'  (Questions  of  \ali(li1\'  of  slate  stat- 
nles  have  arisen  cliielly  whei'e  1hei-e  was  no  J'edei-al  legisla- 
tion.    The  st;i1i'   le-jishit  ion   which    has   been   (|ueslione<i   as   in- 

'!•  Cornpiirc      Powell      v.      I'ciniHyl-  iiiul    el'   Switzcrhiiiil    ^ni:n-iintco    froo- 

vnnia   I'J"  U.  8.  f]7M,  with   Silinllcn-  dntn   of  coiimicrcc  ;iiiiuny   llic  st:it(>s 

bcri^cr  V.  rcnnH.vlv»niii,   171    1'.  S.   1.  or    witliin    the     t'r.lri:il    territory    in 

>♦  (lihJMiiiM  V.  ()>j<len,  '.»  Wli.    1.  e::|ircHS     teriiiH      ( Aiislr:ili:i.     S     92; 

"ft  United   StateH    v.    K.    ('.    Kni^lit  Switzerland.  Art.  31). 
Co.,  156  II,  8.   1,    11.    Of  utl.er   led-  n>  U.  S.  Conntn.   VI  2. 

eral  conHtitiitioiiH  tiioHe  of  AuHtriiiiu 


§  71  STATE  LAWS  AND   COMMERCE.  67 

consistent  with  the  freedom  of  commerce  or  Avith  the  federal 
power  of  regulating  commerce,  may  be  divided  into  two 
classes :  measures  of  revenue  and  measures  of  police.  Some 
of  the  subtlest  distinctions  have  been  made  by  the  Su- 
preme Court  with  regard  to  the  former  class,  and  they  will 
be  referred  to  only  incidentally  in  this  connection,  since  ques- 
tions of  the  taxing  power  are  distinct  from  those  of  the  police 
power.  As  for  measures  of  police,  the  following  are  the  prin- 
cipal subjects,  Avhieh  have  come  before  the  Supreme  Court: 
immigration,  navigation,  navigable  waters  and  bridges,  rail- 
roads, certain  forms  of  licensed  business,  especially  peddlers, 
auctioneers  and  brokers;  exports,  foodstuffs,  and  intoxicating 
liquors. 

§71.  Immigration  and  quarantine.^"  —  It  is  admitted  and 
has  been  recognised  by  congressional  legislation  that  a  state 
may  establish  necessary  quarantine  measures,  although  they 
in  fact  regulate  commerce  ;^'^  but  the  state  may  not  place 
burdens  on  immigrants  generally,  irrespective  of  specific  dan- 
gers to  health,  safety  or  morals,  nor  may  burdens  be  imposed 
according  to  the  arbitrary  discretion  of  an  administrative  offi- 
cer.^ ^  Even  valid  state  regulations  are  liable  to  be  superseded 
by  federal  legislation,  and  immigration  is  now  regulated  by  act 
of  Congress,-*^  still,  however,  subject  to  state  quarantine  laws.-^ 
Cases  involving  the  exclusion  of  persons  coming  from  other 
states  have  not  come  before  the  Supreme  Court,  but  it  has  been 
intimated  that  a  state  maj^  protect  itself  from  an  influx  of 

paupers,  criminals,  or  persons  affected  with  contagious  dis- 
ease.2  2 

§  72.  Navigation  and  navigable  waters.--^— The  Supreme 
Court  has  held  that  a  state  cannot  grant  an  exclusive  right 
to  run  steamboats  on  its  navigable  Avaters,  when  these  boats 
are  used  as  instruments  of  interstate  and  foreign  com- 
merce,-^  for  the  principle  of  the  freedom  of  navigation  is  a 

17  See  §§  101,  123,  271,  486-490.  -'<>  Act  March  3,  1903,  32  Stat,  at 

18  Morgan  &c.  Co.  v.  Louisiana  Bd.      L.  p.  1213. 

of  Health,  118  LT.  S.  45.5;  Louisiana  21  Compagnie  Francaise  v.  Louisi- 

V.   Texas,    176   U.   S.   1 ;    Compagnie  ana  St.  Bd.  Health,  186  U.  S.  380. 

Francaise  v.  Louisiana  State  Board  --  Hannibal  &c.  R.  R.  Co.  v.  Husen, 

of  Health,  186  V.  S.  380.  95  U.  S.  465. 

19  Passenger   Cases,    7   How.   283;  -3  See   §§   159,  407. 
Henderson  v.  Mayor,  92  U.  S.  259;  24  Gibbons  v.  Ogden,  9  Wheaton  1. 
Chy  Lung  v.  Freeman,  92  U.  S.  275.  1824. 


68 


FEDERAL  GOVERNMENT. 


§73 


matter  exclusively  of  national  concern.  A  state  may  establish 
pilotage  and  other  harbor  regulations,-^  this  being  a  subject 
of  local  character,  and  Congress  having  recognised  the  state 
laws  in  this  matter  as  early  as  1789.-*'  But  the  state  laws  are 
liable  to  be  superseded  by  acts  of  Congress.-"  Until  Congress 
has  acted,-^  states  may  authorise  the  building  of  bridges  or 
dams  across  navigable  rivers,^^  although  navigation  may  there- 
by be  interfered  with,  and  local  regulations  regarding  the 
opening  and  closing  of  bridges  are  valid,  though  they  neces- 
sarily atfect  and  temporarily  hinder  the  passage  of  ships.^" 
The  Supreme  Court  has  held  that  such  regulations,  being  local 
and  not  national  in  character,  are  not  encroachments  upon  the 
domain  reserved  to  the  exclusive  action  of  the  federal  gov- 
ernment."^^ 

1^  73.  Railroads  and  common  carriers. ■^2_it  is  conceded  that 
states  may  enact  measures  necessary  to  safeguard  the  se- 
curity of  passengers  though  such  measures  are  applicable  to 
trains  running  between  different  states.  Laws  have  accord- 
ingly been  upheld  which  require  the  licensing  of  railroad  en- 
gineers and  exclude  those  affected  with  color  blindness  from 
pursuing  that  business, ■'^'^  or  which  require  a  special  system  of 
heating  on   railroad   cars.'*-*      A  state   may   also   prohibit   and 


-5  Appointing  places  for  landing, 
I'acket  to.  V.  Tatlottsburg,  105  U. 
S.  r,-)9,  188J.  Rate  of  speed  for 
Bicamers  leaving  wharves  at  Albany, 
People  V.  Jenkins,  1  llill  4(59,  1841. 
A  federal  prohibition  against  build- 
ing beyon<l  certain  lines  is  not  nec- 
essarily authority  to  build  up  to 
them;  local  regulations  restraining 
the  erection  of  structures  in  navi- 
({able  waters  wholly  within  the  limits 
of  states  remain  in  force.  Cum- 
mings  V.  Chicago,  ]8M  V.  S.  410;  see 
hIso  Cobb  V.  (Commissioners  of  Lin- 
coln I'ark,  202  III.  427,  (57  N.  K.  .''.. 

'•  ('oolcy  V.  Hojird  nf'  Wardens,  12 
Ifow.   25»«,   IS.")!. 

2' Spraiguc  v.  'Plininpson,  118  II. 
S.  ttO,  1S.'56. 

'•And  Congress  has  provided  fur 
fide<|Ufit(<  fi'di-ral  cotitnd  in  this  mat- 
tfr:     Alt  of  Hrj.t.  1(1,  ison. 


^f  Wilson  V.  Black  Bird  Creek 
Marsh  Co.,  2  Pet.  245;  Pound  v. 
Torek,  i)5  U.  S.  459;  C.ilman  v.  Pliil- 
adelphia,  li  Wall.  71:5;  Cardwell  v. 
American  River  Bridge  Co.,  11.'?  IT. 
S.  205. 

•"»"  Escanaba  &e.  Co.  v.  Chicago, 
1117  V.  S.  (578. 

•''1  As  to  ferries  see  Prentice 
&  Egan,  Commerce  Cl.nise,  p.  157- 
1(51.  Th(>  ("arJier  law  must  be  re- 
g:irde<i  as  unsettled  by  Covington 
an<l  Cin<'inn:iti  Bridge  Co.  v.  Ken- 
tucky, 154  U.  S.  204.  — Cau.-ida  plaees 
iiiterprovincial  ferries  uncler  federal 
jurisdiction. 

•"•-See  §§  .-58,3,  ,551. 

•■la  Smith  v.  Alabaina,  124  U.  S. 
4(55;  N'.ashville,  Chatt.  &  St.  Louis 
i;.  Cn.  V.  Alabama,  128  U.  S.  96. 

•■•♦N.  Y.,  N.  IL  &  Hartford  H.  Co. 
V.  New  York,  1(55  TT.  S.  ()2.S,  ]S!»7. 


§  73  STATE   LAWS  A.\D   ('UMxMERCE.  59 

make  void  contracts  by  which  a  carrier  undertakes  to  relieve 
himself  from  common  law  liability  for  accident  happening 
within  the  state,  although  the  transportation  is  from  state-  to 
state,^^  or  may  require  a  special  form  of  contract  for  exemp- 
tion from  liability  in  connection  with  shipments,  beyond  the 
line  of  the  carrier  receiving  the  goods.-"*^  Such  legislation  is 
regarded  as  being  in  aid  of  commerce,  and  is  valid  until  super- 
seded by  federal  statute. 

A  state  may  also  forbid  the  running  of  freight  trains  on 
Sundays,  this  being  a  measure  for  the  protection  of  health  and 
morals  of  the  people  of  the  state,  a  police  regulation  and  not  a 
regulation  of  commerce.  If  such  a  regulation  appears  preju- 
dicial to  the  interests  of  commerce,  Congress  may  interpose. •"'' 

The  state  may  even  within  its  boundaries  proscribe  rules  for 
railroads  doing  interstate  business  which  consult  merely  the 
convenience  of  its  inhabitants :  so  it  may  require  trains  to  stop 
at  county  seats. ^^  It  may  also  require  such  companies  to  pro- 
vide separate  coaches  for  black  and  Avhite  passengers  while 
within  the  state  and  for  transportation  from  place  to  place 
within  the  state  ;39  but  it  cannot  require  a  train  carrying  the 
mail  to  run  out  of  its  way  to  accommodate  the  people  of  a 
county  seat,^*^  and  it  cannot  either  require  or  forbid  the  separa- 
tion of  the  races  where  the  law  will  necessarily  extend  its 
operation  to  that  part  of  the  transportation  which  lies  beyond 
the  state  limits.'* ^ 

As  for  the  purely  economic  aspect  of  railroad  transporta- 
tion: it  was  held  in  the  original  Granger  cases^-  that  the  state 
regulation  of  charges  bearing  primarily  upon  business  done  in 
the  state  may  affect  interstate  business ;  but  this  decision  was 
later  on  practically  overruled  in  Wabash  &c.  R.  Co.  against  Illi- 
nois^s  \)y  holding  that  a  state  statute  forbidding  discrimination 

35  C.  M.  &  St.  P.  E.  E.  Co.  V.  So-  O.  R.  Co.  v.  Kentucky,  179  U.  S. 
Ian,  169  U.  S.  133,  1898.  388,  1900. 

36  R.  &  A.  E.  Co.  V.  Patterson  10  i.  c.  E.  Co.  v.  Illinois,  163  U. 
Tobacco  Co.,  169  U.  S.  311.  S.  142;  obviously  the  distinction  be- 

37  Hennington  v.  Georgia,  163  U.  tween  this  and  the  Ohio  case  is 
S.  299.  merely  one  of  degree. 

38  Gladson  v,  Minnesota,  166  U.  S.  41  Hall  v.  De  Cuir,  95  U.  S.  485,, 
427;  L.  S.  &  M.  S.  E.  Co,  v.  Ohio,  1878. 

173  U,  S.  285,  1899.  42  Peik  v.  C.  &  N.  W.  E.  Co.,  94 

39  L.,  N.  O.  &  T,  E.  Co.  V.  Missis-      U,  S.  164,  1876. 

sippi,  133  IT,  S.  587,  1890;   Ches,  &         43  118  U.  S,  557,  1886. 


70  FEDERAL  GOVERNMENT.  §  74 

by  railroad  companies  in  their  rates  could  have  no  application 
to  interstate  business,  not  even  as  to  that  part  of  the  trans- 
portation which  was  within  the  state."*-*  Yet  it  has  been  held 
recently  that  the  common  law  rule  agrainst  discrimination  ap- 
plies to  interstate  business.*^ 

While  the  power  to  regulate  rates  does  not  extend  to  trans- 
portation reaching  beyond  the  state,  yet  railroad  companies 
may  be  required  to  post  their  rates,-**^  and  rules  of  evidence 
may  be  enacted  with  regard  to  contracts  of  shipment  beyond 
the  state.^' 

A  state  cannot  recjuire  a  license  of  a  railroad  agent  solicit- 
ing patronage  for  a  railroad  of  another  state"***  nor  can  it  re- 
quire a  license  of  an  agent  of  an  express  company  for  doing 
interstate  business.^^ 

§  74.  Peddlers,  auctioneers,  brokers  and  drummers.""'  — The 
ca.ses  last  cited-''*  find  a  parallel  in  the  decision  declaring 
unconstitutional  a  state  law  imposing  a  license  tax  upon  drum- 
mers.^- On  tlu'  other  hand  a  license  tax  imposed  upon  an 
emigrant  agent,  i.  e.,  a  person  liiring  laborers  for  service  out 
of  the  state,  is  valid,^-*  and  so  is  a  license  tax  imposed  upon  a 
broker  dealing  in  foreign  bills  of  exchange,-'*-*  the  reason  being 
in  each  case  that  the  business  cannot  be  said  to  be  directly  con- 
ctTin'tl  with  interstate  commerce,  the  transportation  of  work- 
iinii  being  only  incidental  to  employment  in  another  state,  and 
the  exchange  broker  merely  supplying  an  instrument  of  com- 
iiH-rce.  A  non-discriminating  license  tax  upon  all  i)eddlers  is 
valid  as  to  those  who  sell  goods  brought  from  other  states,-''-'' 
while  H  license  fee  discriminating  against  products  of  other 
states  is  void/'"     As  regards  auctioneers'  licenses  it  was  inti- 

**Hvo    alm>    Hmytli    v.    Ames,    Kilt  f'<»  Sco  §  lil)4. 

I'.  8.,  4(U5;   L.  &  N.  R.  Co.  v.  Kon-  fn  McCiill    v.    California,    Crutcher 

tiicky,  183  U.  8.  MX  \.   Kcnunkv. 

•••  W.  U.  Tol.  Co.  V.  Call   I'nh.  Co.,  r.-2  I{„hl)ins  v.   Shelby   County  T:ix- 

181   U.  H.  912,  1001.  ii.jr  District,  120  U.  S.  489. 

*•('.  &  N.  W.  R.  Co.  V.   i'nilcr,   17  -■  WilliiiniH    v.    Fears,    179    U.    S. 

Wall.  .''.HO.  1>7(),  1900. 

«7  R.  &  A.  R.  Co,  V.  I'attorHon  T(.-  r,t  Nathan    v,    Louisiana.    8    Kow. 

I  arc.  Co,,  109  IT.  S.  .11.''.,  7.'i,   lM.'-)(). 

♦«  .MrCall  V.  Cnlifornin,    I.V.   IT.  M.  r.r,  Kmerf     v.    Missouri,     ir.C,    IT,    S. 

104,   1H90,  -jiM;.    I  S9r,. 

♦"Cnifrhor    V.    Kentucky,     141     U.  r-"  VVclton    v.     MisHouri.    91     IT.    S. 

«     «7     I'^'O.  -:.-,,    ls7(i. 


§  75  STATE  LAWS  AND  COMMERCE.  7^ 

mated  in  Brown  v.  ]\raryland,^"  that  such  licenses  are  valid 
even  though  the  auctioneer  sell  foreign  goods,  and  a  non-dis- 
criminative license  tax  upon  auctioneers  selling  goods  coming 
from  other  states  has  been  upheld,"**  it  is  true  upon  a  distinc- 
tion between  imports  from  other  states  and  imports  from  for- 
eign countries,  which  has  since  been  discountenanced.^'-*  Cana- 
da allows  the  provincial  governments  to  impose  trade  license 
taxes  in  order  to  raise  revenue  for  provincial,  local,  or  muni- 
cipal purposes.^*^ 

§75.  Inspection  la ws.*5i— Statutes  requiring  goods  to  be 
packed  and  marked  in  certain  ways,  before  they  are  exported 
from  a  state,  are  undoubtedly  regulations  of  commerce.  They 
are  upheld  largely  because  the  federal  constitution  recognises 
and  sanctions  their  existence  subject  to  the  power  of  Congress 
to  disapprove  them.^-  If  non-discriminative,  they  are  also  up- 
held as  to  imports  from  other  states,^ ^  and  so  as  to  provision 
for  gauging  boatloads  of  coal  or  coke  before  their  sale  is  per- 
mitted.<5-* 

§  76.  Liquor.^^  —  The  status  of  state  statutes  regarding  in- 
toxicating liquors  under  the  federal  constitution  has  been  the 
subject  of  repeated  and  not  always  harmonious  adjudica- 
tions. In  the  License  Cases^^  statutes  were  sustained  which  re- 
quired licenses  for  the  retail  sale  of  liquors  imported  from 
abroad,  and  for  the  sale,  in  original  packages,  of  liquors 
brought  from  other  states.  In  Bowman  v.  C.  &  N.  W.  R.  Co.*'' 
it  was  held  that  a  state  cannot  prohibit  the  bringing  of  liquor 
into  the  state  since  it  is  a  lawful  article  of  commerce,  and  in 
Leisy  v.  Hardin,*'®  that  the  state  cannot  prohibit  the  sale  by 
the  importer  in  original  packages.  Leisy  v.  Hardin  overruled 
Pierce  v.  New  Hampshire,  one  of  the  license  cases,  although 
the  decision  in  that  case,  while  arguing  for  the  poAver  to  pro- 
hibit, actually  upheld  only  a  license.    The  question  would  there- 

5T  12  Wh.  419,  44.3.  Turuer   v.   Maryland,    107   U.   S.   38, 

r.8  Woodruff    v.    Parham,    8    Wall.  1883. 

123.  0"  Patapsco    Guano    Co.    v.    Board 

39  BoTi-man  v.  C.  &  N.  W.  E.  Co.,  of  Agriculture,  171  U.  S.  345. 

125  U.  S.  465.  ''i  Pittsburg,  &c.  Coal  Co.  v.  Lou- 

«o  British     North     America     Act,  isiana,  156  U.  S.  590. 

1^67,  §  92.  05  See  §§  228-233. 

fii  See  §§  276-278.  86  5  How.  504,  1847. 

62  U.    S.    Constitution,    1,    10,    2;  67  125  U.  S.  465,  1888. 

68  13.5  U.  S.  100,  1890. 


72  FEDEKAL  GOVERNMENT.  §  77 

fore  arise  whether  a  state  could  not  even  require  a  license  of 
dealers  in  liquor,  where  the  liquor  comes  from  other  states  and 
is  sold  in  original  packages,  a  power  which  if  exercised  with- 
out discrimination  seems  to  be  conceded  in  Walling  v.  Michi- 
gan f'-*  but  the  question  is  now  without  practical  importance 
since  Congress  has  interposed  and  has  subjected  liquor  in  the 
hands  of  the  importer  to  the  operation  of  state  laws.""^ 

The  right  to  manufacture  liquor  may  be  forbidden,  though 
the  li(|uor  be  intended  for  export,  since  manufacturing  is  not 
itself  a  transaction  of  commerce."^ 

In  requiring  licenses  of  dealers  in  liquor  no  discrimination 
may  be  made  either  against  dealers  of  other  states'^  nor  against 
products  of  other  states,"^  and  provisions  in  a  law  establishing 
a  state  monopoly,  by  which  a  legal  preference  is  given  to  do- 
mestic products  of  the  state,  are  invalid.'-* 

Switzerland'^  and  Australia"*^  make  exceptions  from  the 
princii)le  of  federal  freedom  of  commerce  in  favor  of  local 
control  of  intoxicating  liquors. 

ij  77.  Foodstuffs  and  live  stock.''  — It  has  been  held 
that  a  state  may  not  absolutely  forbid  the  bringing  of  Texas 
cattle  into  the  state  during  the  greater  part  of  the  year,'*  since 
this  was  at  tbe  time  regarded  as  more  than  was  absolutely 
necessary  as  a  measure  of  protection  for  the  state.  But  laws 
creating  the  strictest  rules  of  liability  for  infection  spread  by 
Texas  cattle  have  been  upheld,"^  and  in  Kimmish  v.  Ball  the 
Snprenie  Court  said  with  reference  to  the  Ilusen  case:  "No 
attempt  was  made  to  show  Ili;i1  all  Texas,  Mexican  or  Indian 
cattle  coming  from  the  nml.iiial  districts  during  the  months 
iiieiitioiied.  wfi-e  infected  with  Ihc  disease,  or  that  such  cattle 
wiTc  so  generally  infected  ih.it  it  would  have  been  impossible 
to  separate  the  healthy  from  the  diseased.  Had  such  jiroof  bciMi 
given  a  dilTereiit   <inestion  would  have  been  presented  for  the 

in  11(1    r.   S.   44(),   4(i().      Ill    D.iwii-  -i  Ticrnan    v.    Rinkcr,    102    U.    S. 

I.iim  V.  AlfxiUKlriii  ('(iiiiifil.    Kt  W.-ill.  llili,   18S0. 

17H,  fho  qiioHtinn  whh  niiHCfl  Imt  not  t*  Scott  v.  DoikiIiI,  H^^^  U.  H.  ^H. 

«liwiiH»p<l    Hiticfi    tho    recor<l    ili'l    imt  ^n  (Jonstitiil  ioii   Arl.   .'(1,   '.V2  liis. 

pri'Hfdf    it.  70  r'otinndinvoiillh   Act,   §  11.'?. 

'"  WilHoii  Act  of   IHIM),  111  n-   I{:ili-  "  HtM>  §  l.'iH. 

lor.    110   IT.  8,  54.'),  and  hoc   KliodnH  7h  ifannihiil,  etc.,  H.  R.  Co.  v.  Hu- 

V.  Iowa.  170  XI.  S.  412.  m  n.  !».')  U.  S,  46.'),  1878. 

-t  Kirld    V.    Ponrm.n,    I'JH    II.    S.    1,  •"  KimmiNli  v.  Bail,  129  U.  S.  217; 

)H8«.  \liHHouri,   K.  &   T.   H.  Co.  v.   Haber, 

TiWnllinK  v.   Midiin,,,,,    lIC   I'.  S.  169  U.  S.  61.H. 
446,    1SH6. 


c  7g  STATE  LAWS  AND   COMMERCE.  73 

consideration  of  the  court."  Quarantine  measures  afrainst 
animals  have  since  been  upheld,  although  some  federal  legisla- 
tion exists  regarding  the  same  matter.^^ 

^Measures  requiring  the  inspection  of  animals,  meat  or  tlour 
have  been  declared  invalid  because  either  directly  or  by  their 
necessary  operation  they  discriminated  against  the  products 
of  other  states,  so  a  law  forbidding  the  sale  of  fresh  meat  un- 
less the  animal  had  within  twenty-four  hours  before  it  was 
slaughtered  been  inspected  within  the  state,  and  a  law  requir- 
ing the  inspection  of  all  meat  slaughtered  more  than  one  hun- 
dred miles  away  from  the  place  where  it  was  offered  for  sale.^^ 

A  state  statute  forbidding  the  sale  of  oleomargarine  made  in 
semblance  or  imitation  of  butter,  has  been  sustained  in  its 
operation  on  oleomargarine  brought  from  other  states  r'^^  ]y^^i 
statutes  have  been  held  void  as  to  oleomargarine  so  imported, 
which  prohibited  its  sale  altogether,  or  allowed  it  only  if  col- 
ored pink,^^'"^  the  difference  being  that  oleomargarine  was  a 
lawful  article  of  commerce,  but  oleomargarine  so  prepared  as 
to  deceive  was  not. 

PRINCIPLES    UNDERLYING    THE  DECISIONS  OF  THE  SUPREME 

COURT.     §§  78-85. 

§  78.  We  can  trace  in  the  decisions  of  the  Supreme  Court 
upon  the  validity  of  state  statutes  under  the  commerce  clause 
of  the  constitution,  a  number  of  distinctions,  not  all  of  which 
are  marked  by  great  clearness,  and  certainly  not  all  of  which 
have  been  easy  of  application. 

§  79.  Business  v^hich  is  commerce  and  business  which  is  not 
commerce. — There  is  in  the  first  place  the  distinction  between 
what  is  commerce  and  what  is  not  commerce.  Not  only  the 
transportation  of  goods  is  commerce,  but  also  the  transporta- 

so  Rasmussen  v.  Idaho,   181   U.   S.  §2  Plumley    v.    Massachusetts,    154 

198;  Smith  v.  St.  Louis  &  S.  W.  R.  U.  S.  461,  1894. 

Co.,    181    U.   S.    248 ;    Reid   v.   Colo-  ««  Schollenberger  v.  Pennsylvania, 

rado,   187  U.   S.  137;   Act   May  29,  171  U.  S.  1 ;   Collins  v.  New  Hamp- 

1884,  1st  Suppl.  U.  S.  R.  St.  436.  shire,   171   U.  S.  30.      Congress,    by 

81  Minnesota  v.  Barber,  136  U.  S.  act  of  May  9,   1902,  has  since  sub- 

313,  1890;  Brimmer  v.  Rebman,  138  jeeted    oleomargarine    imported   into 

U.   S.   78,   1891;    Voight   v.   Wright,  a   state    to    the   laws   of    that    state 

141  U.  S.  62,  1891.  enacted  in  the  exercise  of  its  police 

powers. 


74  FEDERAL   GOVERNMENT.  §  79 

tiou  of  persons  and  the  eonveyanee  of  intelligence.'  On  the 
other  hand  a  contraet  of  insurance  with  a  foreign  company 
is  not  commerce.-  As  to  manufacture,  it  is  within  the  control 
of  the  state  because  not  commei'ce,  although  the  product  or 
part  of  it  may  be  intended  to  be  exported."  but  a  contract  of 
sale  made  with  persons  in  other  states  to  which  the  goods  are 
to  be  sent,  is  within  the  control  of  the  United  States,  although 
the  goods  are  first  to  be  manufactured."*  While  manufacture, 
the  product  of  which  is  intended  for  export,  is  conceded  to  be 
subject  to  state  control,  in  the  absence  of  federal  legislation, 
the  question  whether  such  manufacture  is  also  subject  to  fed- 
eral control  has  not  yet  been  passed  upon  judicially.  It  is  true 
that  the  Supreme  Court  has  disclaimed  for  the  United  States 
any  control  ovei-  manufacturing,  mining  and  agriculture  in  the 
states,-''  but  it  has  had  no  occasion  to  make  any  binding  decision 
to  that  effect.  The  case  of  Ignited  States  v.  E.  C.  Knight  Co." 
merely  holds  that  a  particular  statute  intended  to  a])i)ly  to 
interstate  commerce  had  no  ai)plic<Mtion  to  the  organisation  of 
a  manufacturing  company,  which  is  vei-y  far  from  holding 
that  manufacturing  for  a  national  or  foreign  market  can  un- 
der iHi  circumstances  fall  und(M'  the  conmierce  powi'f.  The 
first  step  in  this  difi'ctinn  has  been  taken  by  Congress  in  con- 
nection with  the  Iteef  industi-y.  The  Act  of  :\Iarch  8,  1891 
(amended  March  l2,  1895),"  ])i'ovides  for  the  inspection  of  all 
live  cattle  the  meat  of  which  is  intended  for  exportation,  niul 
of  all  cattle,  sheej)  and  hogs  which  are  subject  to  interstate 
<'ommerce  and  which  are  about  to  l)e  slauglittMVMl  at  slaughter- 
houses and  the  carcasses  or  products  of  which  are  to  be  trans- 
ported to  and  sold  for  human  consumption  in  any  otlu'r  state. 
A  liill  iiili'oduced  in  tlie  ."ilth  Congress  for  the  control  of  com- 
binations |iur|ii.r'tiM|  to  apply  to  all  cofpoi-at  ions,  ^c.  which 
iiiaiuifaet  un-  or  pi-odui'i'  ;iii_\'  iiclielr  wliicli  in  tlie  course  ol" 
bnsiiieHS  is  Iiabi1uall\'  s(»ld  and  deli\'ei'ed  hcyoiid  llie  stale  in 
wliich    it    is   manul'.-ieturi'd.      'I'he    fdi-ec    ol'   circunist.-inces    will 

«  IIoiirlcrMiiii    V.    .Mayor,    !••-'    T.    S.  '•  .A.ldy.slmi     Pipe    ic    .Stn-I    Co.    v. 

2W;    IVnHiii'olii  To].  Cn.   v.   Wi'Htorn  I'liitrd  States,  175  IT.  S.   L'11,    1H9!»; 

Union   Tol.   Co.,   9«   U.   S.    1  Isi.M   v.   PcnrHon,   128  TT.  S.    I. 

3  Pniil    V.    Viruifiiu,    S     W.ill.     IDs.  'Mr,(J   [t,  }^_   i 

If'OH.  7  I     Suppl    Kcv.    St.it..    p.    !);5H,    II 

'  Ki«l<l    \.    iVarHon,    ILIM    P.    S.     I.  Suppl.    104. 

« Unito«l    Klati-H    v.    K.    C    Kiiiylil 
Co.,  l.'Jn   V.  H.   1.   IHn.l. 


^  go  i'WKKDU.M    UF    COMMFKlE.  75 

require  an  interpretation  of  the  constitution,  by  which  federal 
control  will  be  extended  over  every  business  which  is,  and  in 
so  far  as  it  is,  conducted  with  a  view  to  interstate  or  foreifi^n 
commerce,  and  such  interpretation,  it  is  submitted,  is  logrically 
sound. 

Of  forms  of  business  incidental  and  auxiliary  lo  (.'omnifrce 
between  the  states  and  with  foreign  nations,  some  have  been 
held  to  be  beyond  the  control  of  the  states  and  others  within  it. 
So  the  soliciting  of  orders  for  goods  to  be  brought  from  other 
states,  and  the  soliciting  and  negotiating  of  business  for  inter- 
state railroads  are  forms  of  business  so  closely  connected  with 
commerce  that  the  necessary  agents  cannot  be  taxed  ■,^  but  the 
employment  of  workmen  to  work  in  another  state  has  no  direct 
relation  to  commerce.'-*  Dealing  in  foreign  bills  of  exchange 
is  not  commerce,^"  and  the  states  have  always  had  full  con- 
trol of  the  whole  law  relating  to  such  bills;  yet  it  can  hardly 
be  denied  that  this  law  is  sufficiently  closely  connected  with 
commerce  that  the  United  States  could  assume  to  regulate  it. 
The  law  regulating  the  liability  of  common  carriers  engaged 
in  interstate  commerce  for  accidents  happening  within  the 
state  is  within  the  control  of  the  state,"  but  not  the  law  regu- 
lating their  charges,^-  though  this  matter  is  subject  to  the 
common  law  which  is  state  law.^^ 

§  80.  Local  and  national  aspect  of  commerce.— A  further 
distinction  is  based  upon  a  difference  between  the  local  and 
the  national  aspect  of  commerce  first  stated  by  Justice  Wood- 
bury in  the  License  Cases,i^  and  which  Avas  distinctly  recog- 
nised in  Cooley  v.  Board  of  Wardens.^"*  With  respect  to  this 
Justice  Field  in  his  concurring  opinion  in  Bowman  v.  C.  &  N. 
W.  R.  R.  C0.16  says:  "The  doctrine  now  firmly  established  is 
that  where  the  subject  upon  which  Congress  can  act  under  its 
commercial  power  is  local  in  its  nature  or  sphere  of  operation, 
such  as  harbor  pilotage,  or  improvement  of  harbors,  the  estal)- 
lishment  of  beacons  and  buoys  to  guide  vessels  in  and  out  ol" 
port,  the  construction  of  bridges  over  navigable  rivers,  the  erec- 

s  Bobbins   v.   Shelby   County   Tax-  i- Wabash   eti-.   R.   Co.   v.    Illinois, 

iug  District,   IL'O  U.  S.  489;    McC'all  US  V.  S.  557. 

V.  California,  136  U.  S.   104.  i3  W.  U.  Tel.  Co.  v.  (all  Pub.  Co.. 

0  Williams  v.  Fears,  179  U.  S.  270.  181  U.  S.  92. 

10  Nathan  v.  Louisiana,  8  How.  73.  ^^  5  How.  504. 

11  Chicago.   M.  &  St.  P.  E.   Co.  v.  ir.  10  How.  298. 
Solan,  169  U.  S.  133.  >«  125   U.   S.   465. 


76  FEDERAL  GOVERNMENT.  §  80 

tioii  of  wharfs,  piers  and  docks,  and  the  like,  which  can  be 
properly  regulated  only  by  special  provisions  adapted  to  their 
localities,  the  state  can  act  until  Congress  interferes  and  super- 
sedes its  authority ;  but  where  the  subject  is  national  in  its  char- 
acter, and  admits  and  requires  uniformity  of  regulation,  alfect- 
ing  alike  all  the  states,  such  as  transportation  between  the 
states,  including  the  importation  of  goods  from  one  state  to 
another.  Congress  can  alone  act  upon  it  and  provide  the  needed 
regulations.  The  absence  of  any  law  of  Congress  on  the  sub- 
ject is  eciuivalent  to  its  declaration  that  commerce  in  that 
matter  shall  be  free." 

As  a  matter  of  fact  the  recognition  of  state  control  has  been 
determined  in  many  cases  by  the  fact  that  in  the  absence  of 
Congressional  regulation  some  regulation  by  some  authority 
was  necessary.  That  the  control  of  navigable  waters  should 
be  national  is  clear  Avhere  these  w^aters  belong  to  several  states 
in  common ;  and  Congress  has  recognised  this  by  placing  navi- 
gable waters  of  the  United  States  under  federal  jurisdiction 
and  forbidding  the  erection  of  bridges  without  the  consent  of 
the  Secretary  of  War.^"  Congress  has  also  legislated  in  a 
measure  with  regard  to  pilotage.  Quarantine  regulations  in 
order  to  be  effective  should  be  national  ami  not  local;  local 
regulations  have  been  recognised  because  some  regulation  was 
absolutely  ref|uired.  So.  in  tlic  al)senee  of  fedi'i-nl  legislation. 
state  laws  are  ui)held  requiring  safety  arrangements  on  trains 
and  prescribing  rules  of  (pialification  for  engineers,  or  forbid- 
ding the  ruiniing  of  trains  on  Sundays.  Yet  nothing  is  ch^arer 
than  that  with  r<'fer('nce  to  interstate  tr;iins  tlie  operation  of 
siu'li  rules  should  be  national  and  nnifoi-ni.  If  it  has  been  said 
on  the  other  hand  tli;it  the  riglit  to  import  goods  and  sell  the 
inijtorts  is  nalionnl.  jiinl  tli;it  llic  non-action  of  Congress  is 
equivalent  to  its  (leel;ir;itin||  tliiit  siieli  rights  shall  lie  Ti-ee  and 
niu-i'striclcd.  the  Inlter  arginnent  is  not  ;il\\;i\s  in  accordance 
with  the  facts.  I'ur  when  the  ddetrine  \v;is  ;i|»|»lied  (o  intoxicat- 
int:  liquors  Congress  answer-ed  iinniediately  hy  the  passage 
of  Mil  act  decl;n*iii<r  that  liipior  should  he  subject  to  the  stiitc 
laws  after  it  |iad  been  inqiorted.  ;iiiil  it  was  genei-.illy  under- 
stood that  this  action  did  not  mean  a  i-evei'sal  of  previous 
iegisintive  policy,  but  rather  a  iiullilicalion  of  the  decision  of 
Leisy  v.  Hardin. 


!•  A.  t   s 


'•i>i.  I'j,  law. 


§  81  FKEEDOAJ    OF   (JUMAiEKCl-:.  77 

ii  81.  Point  at  which  commerce  ceases  to  be  interstate  or 
foreign  commerce;  original  package  doctrine.— The  decision  in 
Brown  v.  Maryland' '^  established  with  rej^ard  to  taxation  of 
foreign  imports  the  doctrine  that  the  federal  freedom  of  com- 
merce continues  while  an  imported  article  remains  in  tlie  orij;- 
inal  package  in  the  hands  of  the  importer,  and  until  he  has 
sold  it  in  such  package,  and  that  therefore  the  state  cannot 
restrain  the  right  to  make  such  sale.''^  If  the  importer  sells 
in  the  original  package,  the  purchaser  becomes  subject  to  state 
law.-*'  The  reason  underlying  this  doctrine  has  perhaps  been 
best  explained  by  Chief  Justice  Taney,  in  the  License  Cases:-' 
* '  The  immense  amount  of  foreign  products  used  and  consumed 
in  this  country  are  imported,  landed  and  offered  for  sale  in  a 
fcAV  commercial  cities,  and  a  very  small  portion  of  them  are 
intended  or  expected  to  be  used  in  the  state  in  which  they  are 
imported.  A  great  (perhaps  the  greater)  part  imported,  in 
some  of  the  cities,  is  not  owned  or  brought  in  by  citizens  of 
the  state,  but  by  citizens  of  other  states,  or  foreigners.  And 
while  they  are  in  the  hands  of  the  importer  for  sale,  in  the 
form  and  shape  in  which  they  were  introduced,  and  in  which 
they  are  intended  to  be  sold,  they  may  be  regarded  as  merely 
in  iransitu,  and  on  their  way  to  the  distant  cities,  villages,  and 
country  for  which  they  are  destined,  and  where  they  are  ex- 
pected to  be  used  and  consumed,  and  for  the  supply  of  which 
they  were  in  truth  imported.  And  a  tax  upon  them  Avhih^  in 
this  condition,  for  state  purposes,  whether  by  direct  assess- 
ment, or  indirectly,  by  requiring  a  license  to  sell,  would  be 
hardly  more  justifiable  in  principle  than  a  transit  duty  upon 
the  merchandise  when  passing  through  the  state.  A  tax  in 
any  shape  upon  imports  is  a  tax  upon  the  consumer  by  enhanc- 
ing the  price  of  the  commodity,  and  if  a  state  is  permitted 
to  levy  it  in  any  form,  it  will  put  it  in  the  power  of  a  maritime 

iJ^l^  Wh.  419,  1827.  r.ge  from  state  taxation  thus  appears 
I'-'The  act  of  Maryland  taxing  ini-  to  have  been  recognised  by  state  leg- 
porters  (ch.  246  of  1821).  was  an  islation  before  it  was  insisted  on 
amendment  of  an  earlier  act  (ch.  by  Iho  Supreme  Court.  It  would  be 
184  of  1819)  taxing  retailers  of  interesting  to  ascertain  in  what  stat- 
goods  except  such  as  are  sold  by  the  nte  the  exemption  of  the  original 
importers  thereof  in  the  original  package  first  occurs, 
cask,  case,  box  or  package  wherein  20  Pervear  v.  Massachusetts,  5 
the  same  shall  have  been  imported.  Wall.  475. 
The  exemption  of  the  original  pack-  -i  5  How.  575. 


78  FEDEEAL   GOVERNMENT.  §  81 

importing:  state  to  raise  a  revenue  for  the  support  of  its  own 
government  from  citizens  of  other  states,  as  certainly  and 
effectually  as  if  the  tax  was  laid  openly  and  without  disguise 
as  a  duty  upon  imports.  Such  a  power  in  a  state  would  defeat 
one  of  the  principal  objects  of  framing  and  adopting  the  Con- 
stitution. It  cannot  be  done  directly  in  the  shape  of  a  duty  on 
imports  for  that  is  expressly  prohibited.  And  as  it  cannot 
be  done  directly,  it  could  hardly  be  a  just  and  sound  construc- 
tion of  the  Constitution  which  would  enable  a  state  to  accom- 
plish precisely  the  same  thing  under  another  name  and  in  a 
different  form."  It  was  formerly  strongly  doubted  whether 
the  doctrine  applied  to  imports  from  one  state  to  another,^^ 
but  it  was  so  applied  in  the  case  of  Leisy  v.  Hardin,-^  with 
reference  to  an  exercise  of  the  police  power. 

Since  the  decision  in  Leisy  v.  Hardin  the  doctrine  has  been 
modified  in  two  directions:  Congress  by  the  so-called  Wilson 
Act  of  1890  provided  that  intoxicating  liquors  transported  into 
a  state  should  upon  their  arrival  there  become  subject  to  the 
police  poAver  of  such  state,  and  not  be  exempt  by  reason  of 
being  introduced  in  original  packages  ;2-i  and  the  Supreme 
Court  by  two  decisions-^  restricted  the  protection  accorded  to 
original  packages  to  such  as  were  suitable  for  wholesale  im- 
portations, leaving  the  state  laws  free  to  deal  with  small  pack- 
ages intended  for  retail  sales,  especially  where  these  small 
packages  are  brought  in  in  larger  enclosures  or  receptacles. 

Under  llu'  Wilson  act  llic  federal  immunity  of  commerce 
ceases  only  when  the  li(|ii<ti-  has  reached  the  consignee,-''  so 
that  the  consumer  is  still  free  to  import.  But  under  the  deci- 
sion of  Austin  V.  Tennessee  it  is  doul^tful  whether  a  person 
may  freely  iiiii)ort  retail  packages  for  his  own  use.  The  opin- 
ion speaks  (tf  "iiiiiiiitr  packagi's.  that  may  at  once  go  into  the 
hands  of  retail  dealei-s  and  consumers,  and  thus  l)id  defiance 
to  the  laws  (if  the  state  against  their  inipoi-tat ion  and  sale." 
Till'  cdurt  thus  seems  to  he  of  opinion  that  the  inipoi-ting  ol" 
retail  packages  may  he  Torhidden  as  well  as  the  sale  of  retail 
inip<»rts:  hut   as  Ihc  ease  involved   only   the   right  to  sell,  and 

22Won(lnifT  v.  I'nrhaiii,  s  W.ill.  (ilcnm;ii|,'nrinc  act  of  May  fl,  1902. 
123;    Brown    v.    IIouHton,    lit    \'.    S.  ^•.  May  v.   New  Orloans,  178  U.  S. 


UK),    and    Austin    v.    TcMinosnee,    170 
I'.  S. 

ma«lc  to   Htnt«?  police   pfjwcr  by   Wn-     IS!»8. 


2'">i3r,  u,  H.  100.  r.  s.  lu.-j. 

2*  A    Himilnr    conccHHion    Iimh    Im-cii  -■'■  Rhodes  v.    Iowa,    170   IJ.  H.  412, 


§82  J'ju-:ei)().\i  of  ('i).,i.Mi;i^ci;.  79 

the  decision  was  by  a  bare  majority,  the  question  as  to  the 
right  to  import  cannot  perhaps  be  regarded  as  settled. 

§  82.     The  principle  of  non-discrimination.— It  was  said  by 

.Iiistiee  Field  in  liis  eoncurring  opinion  in  Bowman  v.  C.  &  N. 
W.  R.  Co.  :2'  ' '  It  is  evident  that  the  value  of  the  importation 
will  be  materially  affected  if  the  article  imported  ceases  to  be 
under  the  protection  of  the  commercial  power  upon  its  sale 
by  the  importer.  There  will  be  little  inducement  for  one  to 
purchase  from  the  importer,  if  immediately  afterwards  he  can 
be  restrained  from  selling  the  article  imported ;  and  yet  the 
power  of  the  state  must  attach  when  the  imported  article  has 
become  mingled  with  the  general  property  within  its  limits, 
or  its  entire  independence  in  the  regulation  of  its  internal 
affairs  must  be  abandoned.  The  difficulty  and  embarrassment 
which  may  follow  must  be  met  as  each  case  arises. "  It  is  how- 
ever clear  that  in  one  respect  the  freedom  of  commerce  must 
accompany  imported  goods  through  all  stages  subsequent  to 
the  breaking  of  the  original  package,  namely  to  protect  them 
from  discrimination  by  reason  of  their  foreign  origin.  A  state 
may  under  no  circumstances  treat  imported  goods  less  favor- 
ably than  domestic  goods.  This  has  been  recognised  repeatedly 
by  the  Supreme  Court,- ^  and  while  it  was  said  in  one  case-" 
that  it  would  be  an  error  to  lay  any  stress  upon  the  fact  of 
discrimination,  yet  this  element  has  been  absolutely  controlling 
in  a  number  of  important  decisions.-"^" 

The  principle  of  non-discrimination  suffers  an  apparent  ex- 
ception in  the  case  of  quarantine  laws.  Measures  of  quaran- 
tine may  affect  commerce  from  other  states  or  countries,  oi- 
from  particular  foreign  localities,  while  leaving  domestic  com- 
merce free.  Since  the  source  of  disease  is  local,  the  preventive 
measure  has  likewise  a  particular  local  bearing,  and  there  is 
in  reality  no  discrimination,  as  the  term  is  commonly  under- 
stood.    Such  cases  as  Louisiana  v.   Texas,'^i    and  Compagnie 

27  125  U.  S.  465.  The  license  exacted  of  importers  by 

28  Welton  V.  Missouri,  91  U.  S.  the  law  of  Marvlniul  which  was  de- 
275;  Tiernan  v.  Einker,  102  U.  S.  dared  unconstitutional  in  Brown  v. 
123.  ^laryland  was  $50  a  year,  while  other 

20  Bowman  v.  C.  &  N.  W.  E.  Co.,  retailers  of  dry  goods  paid  only  $8; 

125  U.  S.  465.  compare  chap.  184  laws  of  1819  with 

so  Walling  v.  Michigan,  116  U.  S.  chap.  246  laws  of  1821. 

446 ;    Voight   v.   Wright,    141    U.    S.  3i  176  U.  S.  1. 
62;   Scott  V.   Donald,   165  U.   S.   58. 


jjQ  FEDERAL  GOVEENMENT.  §  83 

Fraueaise  v.  State  Board  of  Health  of  Loiiisiana,^-  however, 
clearly  show  the  possibility  of  abuse  of  state  power  and  the 
desirability  of  federal  control,  and  it  is  merely  a  question  of 
time  when  the  whole  matter  of  interstate  and  foreign  quaran- 
tine will  be  covered  by  legislation  of  Congress  to  the  exclusion 
of  state  law. 

§  83.  Things  which  are  lawful  articles  of  commerce  and 
things  which  are  not— State  power  of  exclusion.— Whatever 
just  doubts  there  may  be  as  to  the  right  to  sell  imported  goods, 
it  is  clear  that  the  freedom  of  commerce  involves  the  freedom 
of  importation.  The  question  then  remains  to  be  answered : 
to  what  extent  and  under  what  conditions  does  the  right  to 
import  yield  to  state  legislation .'  In  answer  to  this  question 
the  distinction  has  been  evolved  between  things  which  are  law- 
ful and  proper  articles  of  commerce  and  things  which  are  not. 
"If  the  thing,"  says  Justice  Catron  in  the  License  Cases,  "from 
its  nature  does  not  belong  to  commerce,  or  if  its  condition  from 
putrescence  or  other  cause  is  such,  when  it  is  about  to  enter 
the  state,  that  it  no  longer  belongs  to  commerce,  or  in  other 
words  is  not  a  commercial  article,  then  the  state  power  may 
exclude  its  introduction.  *  *  *  That  which  does  not  be- 
long to  commerce  is  within  the  jurisdiction  of  the  police  powei- 
of  the  states ;  and  that  which  does  belong  to  commerce  is  within 
the  jtii-isdiction  of  the  United  States. ''^^ 

It  liiis  been  admitted  by  the  Supreme  Court  of  the  United 
States  that  a  state  may  exclude  from  its  limits  persons  and  ani- 
mals sufTcring  from  contagious  or  infectious  diseases,  as  well 
as  convicts,  i)aupers,  idiots,  or  lunatics,  or  other  persons  liable 
to  Ix'f'oin*'  a  pu))Iic  charge,'"  and  Congress  has  by  statute 
placed  tin-  transportation  of  nitro-glycerine  entirely  within 
state  control. •''•'■'  lint  not  even  lor  the  purpose  of  accomplisliing 
an  object  othcrwis<^  legitimate  can  the  state  exclude  what  is  a 
lawful  article  of  commerce,  I'oi-  i)y  doing  so  it  would  assume 
control  over  interstate  :iii(l    foreign  commerce. 

This  doctrinr  \\;is  ;i|t|ilic(l  to  the  attempted  exclusion  of  in- 
trixicating  liquors  by  a  statute  »tl"  Iowa  and  the  law  was  held 
1o  be  inieonstitutional.  "It  is  not  an  insjx'ction  law;  it  is  not 
a  r|uarantinc  or  sanitary  law.     It   is  (\ssentially  n   regulation  of 

•12  1H6    V.   S.    HHO.  :ii  II:iiiiiil);il.   .■t...   I{.   Co.  v.   TliiflPii, 

•■•••'5  How,  504.  iwo.  m  II.  s.  icr,. 

•'••'•  U('\.  St.,  Hfc.  4280. 


§  g4  FREEDOM   OF   COMMERCE  81 

commerce  among  the  states  within  any  definition  heretofore 
given  of  that  term,  or  which  can  be  given ;  and  although  its 
motive  and  purpose  are  to  perfect  the  policy  of  the  state  of 
Iowa  in  protecting  its  citizens  against  the  evils  of  intemper- 
ance, it  is  none  the  less  on  that  account  a  regulation  of  com- 
merce. If  it  had  extended  its  provisions  so  as  to  prohibit  the 
introduction  into  the  state  from  foreign  countries  of  all  impor- 
tations of  intoxicating  liquors  produced  abroad,  no  one  would 
doubt  the  nature  of  the  provision  as  a  regulation  of  foreign 
commerce.  Its  nature  is  not  changed  by  its  application  to 
commerce  among  the  states.  "^^ 

§  84.  Conflict  between  state  policy  and  freedom  of  com- 
merce.-v  There  is  thus  an  apparent  contiict  between  the  com- 
merce power  and  the  police  power  in  which  the  police  power 
must  yield.  Upon  the  contrary  theory  "the  power  to  regulate 
commerce  instead  cf  being  paramount  over  the  subject  would 
become  subordinate  to  the  state  police  power ;  for  it  is  obvious 
that  the  power  to  determine  the  articles  which  may  be  the 
subject  of  commerce,  and  thus  to  circumscribe  its  scope  and 
operation,  is  in  effect  the  controlling  one.  The  police  power 
would  not  only  be  a  formidable  rival  but  in  its  struggle  must 
necessarily  triumph  over  the  commercial  power  as  the  power 
to  regulate  is  dependent  upon  the  power  to  fix  and  determine 
upon  the  subjects  to  be  regulated."^' 

In  a  majority  of  cases  such  a  conflict  will  not  arise  since  the 
power  of  exclusion  is  not  apt  to  be  exercised  except  against 
persons  and  articles  manifestly  dangerous  and  not  recognised 
as  within  the  protection  of  legitimate  commerce. 

The  statutes  in  connection  with  which  the  Supreme  Court 
has  had  occasion  to  apply  the  idea  of  lawful  articles  of  com- 
merce, have  prohibited  the  sale  and  not  the  importation  of  the 
article,  but  as  the  right  to  sell  in  the  original  package  is 
regarded  as  inseparable  from  the  right  to  import,  they  may  be 
treated  as  if  they  had  prohibited  the  importation  itself. 

There  are  three  cases  which  illustrate  the  operation  of  the 
doctrine :  Plumley  v.  Massaehusetts,^^  Schollenberger  v.  Penn- 
sylvania,39   and  Austin  v.  Tennessec^*^     The  Supreme  Court 

3c  Bowman  v.  C.  &  N.  W.  R.  Co.,  38  155  U.  S.  4GL 

125  U.  S.  465.  30  171  U.S.I. 

37  Justice  Catron  in  the  License  *»  179  U.  S.  343. 
Cases,  5  How.  504,  600. 

6 


82  FEDERAL   GOVERNMENT.  §  85 

has  liekl  that  tlie  prohibition  of  oleomargarine  made  in  imita- 
tion or  semblance  of  bntter  prevails  over  the  freedom  of  com- 
merce, bnt  that  the  freedom  of  commerce  prevails  over  the 
])rohibition  of  oleomarjiarine  not  fraudulently  made,  and  that 
it  will  also  prevail  ovtM*  tlie  prohibition  of  cigarettes.  The 
Supreme  Court  has  in  other  words  sustained  the  exercise  of 
state  police  power  except  when  the  state  overstepped  the  just 
limitations  of  its  power  by  extreme  measures  of  prohibition. 
The  adjudications  regarding  the  right  to  sell  oleomargarine"*^ 
reveal  this  peculiar  ditference :  the  federal  j^ower  may  protect 
oleomargarine  as  an  article  of  commerce,  but  does  not  protect 
it  as  property;'-  for  once  a  jiai't  of  the  mass  of  property  in 
the  state  its  sale  may  be  entirely  prohibited,  and  it  may  be 
made  useless  in  lln"  liands  of  th(>  owner.  The  theory  is  evi- 
dentlx'  this:  the  police  jxnver  rests  Avitli  the  states  and  the 
14th  Amendment  can  be  relied  upon  to  check  only  a  iiagraut 
abuse  of  that  j)ower;  the  state  determines  what  is  injurious  to 
till'  people  and  in  case  of  doubt  as  to  what  is  a  i)roper  business, 
the  United  States  yields  to  the  state  as  far  as  domestic  busi- 
ness is  concerned.  Commerce,  however,  is  entrusted  to  the 
regulative  jjuwcr  nl"  ijic  federal  government,  and  itf  judgment 
as  to  what  is  an  article  of  commerce  is  formed  independently 
of  state  legislation,  and  in  the  absence  of  congressional  legisla- 
tion this  judgment  must  be  exercised  by  the  Supreme  Court. 
Tt  is  ([uite  conceivable  that  the  Supreme  Court  will  eventually 
protect  property  as  it  now  protects  commtM'ce,  and  will  develop 
and  enforce  just  limitations  of  tlie  police  ])ower  under  the 
Fourteenth  AMiendnienl  :  in  that  event  it  will  not  allow  an 
absolute  prohibition  to  sell  where  it  disallows  an  absolute  pro- 
hibition III  import. 

§85.  Summary  of  principles.  Tlie  state  may  enact  meas- 
ures for  tlie  proteeiioii  of  safel.w  order  ,111(1  morals,  though 
afl'ecting  foi-eign  and  iiilerstate  coniiiii'i-ce.  subji'ct  to  the  fol- 
lowing |)riiu'iples : 

1.  Mvery  measure  of  state  letrislat  ion.  however  legitimate 
in  itself,  yields  to  jyositive  regulation  of  interstate  oi-  foreign 
coimnerce  by  .\ct  of  Congress,  iucousisteiil  with  such  measure 
or  iiitendi'<l  fully  to  cover  the  same  mattiT. 

•' Hchr>llfnh<TK»T   V.    I'cnriHylviiniii,  ••^  Tlio  I'liiitrd  Si.-iIch  now  yields  to 

171    V.  H.   1,  nrnl   Powell   v.   I'cnnHvI-      tlic  HtrilcH  flic  coiilrol   over   iiii|)orto(l 
vuniii.    1'.'7    V.   S.   OTH.  olt'omiiryjiriiic;  Act  iMuy  it,   1!>()12. 


^  35  FRERDOM   OF  COMMERCE.  83 

2.  Every  state  measure  is  void  which  in  any  way  discrim- 
inates against  interstate  or  foreign  commerce,  or  against  the 
products  of  other  states  or  countries  by  reason  of  their  foreign 
origin,  unless  the  local  conditions  of  the  place  of  origin  involve 
a  peculiar  danger  of  disease  or  other  harm. 

3.  It  is  within  the  province  of  federal  jurisdiction  to  deter- 
mine whether  some  article  is  a  lawful  article  of  commerce  or 
not;  a  determination  by  the  state  is  not  conclusive.  A  state 
may  not  prohibit  or  restrain  the  importation  of  lawful  articles 
of  commerce,  nor  their  sale,  as  long  as  they  retain  the  char- 
acter af  imports. 

The  decision  in  Leisy  v.  Hardin^''  has  shown  how  much  the 
last  one  of  these  three  principles  interferes  with  the  enforce- 
ment by  the  state  of  its  domestic  policy.  That  this  result  is  not 
always  desirable  Congress  itself  has  recognised  by  the  enact- 
ment of  the  Wilson  law  nullifying  this  decision  with  particular 
reference  to  intoxicating  liquors.  The  necessary  effect  of  ham- 
pering the  state  police  power  to  an  undue  extent  will  be  the 
demand  for  federal  instead  of  state  regulation.  The  efficiency 
of  federal  administration  is  on  the  whole  superior  to  that  of 
the  states,  and  in  so  far  as  police  restraint  is  beneficial  its 
uniform  operation  throughout  the  country  is  an  additional 
benefit.  In  so  far,  however,  as  police  restraint  means  inter- 
ference with  the  legitimate  exercise  of  individual  liberty,  its 
centralisation  can  hardly  be  viewed  with  favor.  An  over- 
straining of  the  original  package  doctrine  would  have  hastened 
this  process  of  centralisation,  and  its  partial  relaxation  in 
Plumley  v.  ^Massachusetts  and  Austin  v.  Tennessee  must  be 
welcomed  as  securing  to  the  states  a  power  which  they  were 
intended  to  retain,  the  unwise  exercise  of  which  will  find  its 
natural  corrective  in  the  more  liberal  policy  of  other  states, 
and  the  arbitrary  exercise  of  which  ought  to  be  checked  under 
the  Fourteenth  Amendment. 

43 135  U.  S.  100, 


SECOND   PART. 
THE  PUBLIC   WELFARE. 


FIRST:      THE   PRIMARY    SOCIAL   INTERESTS:     SAFETY,    ORDER 

AND   MORALS. 

CHAITEK 

TV.     PEACE  AND  SECURITY  FROM  CRIME. 

V.  SAFETY  AND  HEALTH. 

YT.  PUBLIC  ORDER  AND  COMFORT. 

YTT.  PUBLIC  MORALS:    GAMBLING. 

YIII.  PUBLIC  MORALS:     INTOXICATING  LIQUORS. 

TX.  PUBLIC  MORALS:     VICE  AND  BRUTALITY. 

X.  CONTROL  OF  DEPENDENTS. 

SECOND:     ECONOMIC  INTERESTS. 

XL     PROTECTION  AGAINST  FRAUD. 
XTT.     PROTECTION  OF  DEBTORS. 
XIII.     PROTECTION  OF  LABORERS. 
XIV.     COMBINATIONS  OF  LABORERS. 
XV.     rOMBINATIONS  OF  CAPITAL:    RESTRAINT  OF  TRADE, 
MANIPT'LATTON    OF    PRICES,    AND    TRUSTS    AND 
MONOPOLIES. 

XVT.  CORPORATIONS. 

XVII.  FTfKKDOM  OF  PROPERTY.     PERPETUITIES. 

XVIII.  BUSINESS  AFFECTKI)  WTTIT   A    PUBLIC  INTEREST. 

XIX.  QUALIFIED  PROPERTY. 

XX.  COMPULSORY  BENEFITS. 


8G 


SECOND  PART. 

THE    PUBLIC    WELFARE 

FIRST.     THE  PRIMARY  SOCIAL  INTERESTS:     SAFETY, 

ORDER  AND  IMORALS. 


CHAPTER   IV. 
PEACE  AND  SECURITY  FROM  CRIME. 

§  86.  Police  patrol  and  general  vigilance.— The  first  and 
most  essential  requirement  of  life  in  c.  civilised  community  is 
protection  from  crime  and  open  force  and  violence.  The  crim- 
inal law  deals  with  offenses  after  they  have  been  committed, 
the  police  power  aims  to  prevent  them.  The  activity  of  the 
police  for  the  prevention  of  crime  is  partly  such  as  needs  no 
special  legal  authority :  so  the  patrolling  of  streets,  the  general 
supervision  of  known  criminals,  or  suspected  persons  or  re- 
sorts, by  watching  them,  keeping  track  of  movements,  etc., 
in  so  far  as  all  this  can  be  done  without  infringing  upon 
personal  liberty.^  Among  proprietary  functions  the  lighting 
of  streets  furnishes  protection  against  crime. ^ 

1  See  Rules  and  Regulations  of  sons  of  known  bad  character;  159: 
Chicago  Police  Department,  Duties  of  to  report  policy  dealers,  gamblers,  re- 
Patrolmen  ;  149 :  chief  duty  to  pre-  ceivers  of  stolen  property  and  houses 
vent  crime;  to  examine  every  part  of  bad  repute,  and  also  suspicions  as 
of  his  post ;  vigilantly  watch  every  to  such ;  16i! :  to  carefully  watch  dis- 
description  of  person  passing  his  oiderly  houses  and  observe  by  whom 
way;  151:  to  prevent  commission  of  tliey  are  frequented;  163:  to  notice 
any  assault  or  breach  of  peace;  152:  .suspicious  vehicles  at  night;  165:  to 
to  render  by  his  ^dgilance  commis-  report  lamps  not  lit;  169:  to  con- 
sion  of  crime  extremely  difficult;  stantly  patrol  his  post ;  171:  to  pay 
153:  to  acquire  knowledge  of  inhab-  attention  to  public  houses  and  drink- 
itants  in  his  post;  154:  to  inspect  ing  places,  and  report  violation  of 
carefully  every  part  of  his  post;  oidinances;  172:  if  he  observes  in 
156:  to  examine  in  night  time  doors  the  street  anything  likely  to  produce 
and  low  windows;  157:  to  fix  in  his  danger  or  public  incc.ivenience,  or 
mind  persons  he  frequently  meets  at  anything  peculiar  or  offensive,  to  re- 
night,  and  endeavor  to  ascertain  their  port  and  if  possible  to  remove  the 
names  and  residences;  158:  to  same, 
strictly  watch  the  conduct  of  all  per-  -  See  statute  of  Winchester  1285, 

87 


gg  PEACE  AND  SECURITY  FROM  CRIME.  §  87 

Leaving  aside  these  forms  of  prevention,  the  police  power 
either  represses  directly  crime  or  violation  of  peace  attempted 
to  be  committed  or  in  the  course  of  commission,  or  it  deals 
by  restrictive  measures  with  conditions  which  tend  to  favor 
the  commission  of  crime,  or  to  render  its  detection  difficult. 

COERCIVE    MEASURES    TO    PREVENT     IMMINENT     OFFENSES. 

§§  87-89. 

;;  87.  Arrest.  — The  power  to  deal  with  the  present  or  imiiii- 
lu'iit  foiiuuission  of  felony  or  breach  of  the  peace  is  so  mani- 
festly necessary  as  to  be  a  matter  of  connnon  bnv.  Public  au- 
tliority  is  for  this  purpose  vested  not  merely  in  every  peace 
officer,  but  in  every  private  individual.'^  From  the  iiature  of 
the  case,  an  arrest  under  such  rircumstances  must  be  made 
without  warrant,  and  such  an  arrest  is  legal.  The  constitutions 
do  not  forbid  arrest  without  warrant.  They  merely  prescribe 
special  safeguards  for  the  issue  of  warraifts  in  order  to  do 
away  with  the  former  practice  of  general  warrants.-* 

TIkm-c  is  authority  for  saying  that  private  i)ersons  may  arrest 
ti)  jtrevcnt  any  misdemeanoi"  committed  in  tlieii*  i>resence,"''  but 
it  is  probably  safer  to  confine  the  common  law  right  to  felonies 
and  breaches  of  the  peace.  By  statute  the  right  has  been  ex- 
ti'Jided,  so  in  l']ngland  a  person  doing  malicious  injury  to 
property  may  In-  .in-cstcd  by  the  owner  oi-  any  person  author- 
i.sed  by  iiim."  and  any  one  may  arrest  niiy  |»erson  round  com- 
mitting an  indictable  oU'ense  between  !•  p.  m.  and  <i  a.  ni." 
Tiu'rc  are  American  statutes  authorising  every  private  person 
to  make  arrests  for  any  ci-ime  (»i-  criminal  olVense  committed 
in  his  presence,^  but  tlie\  probably  apply  onl\'  to  such  misde- 
meanors as  cannot  be  stopped  oi-  i-edressed  except  by  immediate 
nrrost."  Where  the  olTense  is  merely  some  contravention  to 
public  policy.  ,1  |i(t\\cr  of  arrest  vested  in  any  |iri\ate  person 
would  |»robnbly  be  uneonstit  ulioiia  I  under  tlir  proliihil  i(ui  oi' 
iiureaMonnble  seizures.'" 

«h.  ."i,  an  to  rnlHr((in(r  liinlnviiyH  ami  •'•  Hi.sliop      .Now      Criiii.      Proc,     I, 

rrmnvitiK    himlicfl    whiTo     mon     iimv  gji    l(5i»-170,   OHpocinlly   Note  ,1. 
•»«rk.  OLM   :in.|   •_'.'>  Vic,  eh.  97,  §61. 

■<  11    •         V.»    rrhiiimil    Pr..i-f«liiro,  7  14  ..,,i<l   IT)  Vic.  ili.  I'.t.  §  II. 

I.   S5  •<  \.    V.   Codi.  Criiii.    Pn.c,    §    18;{; 

«  WillitiiiiM    V.    Hlatf.    41    AJH.     II;  I II.  (  rim.  Codo,  §  lUL'. 

n  V.  Hnwin,  .">  Ciinh.  'J81  ;    Nortli  "  Norfli   v.    i'.n|.l<',    l.t'.t    III.  SI. 

.     r.opir,  139  III.  81.  i'>  North  v.   I*rn|.lr,   I.'tli  III.  Ml. 


§  88  COERCIVE  MEASURES.  39 

§  88.  Suppression  of  riot.— Special  powers  of  summary  re- 
pression are  given  by  statute  in  case  of  unlawful  assemblies 
and  riots.^i  The  statute  of  Illinois  makes  killing  in  the  suppres- 
sion of  a  riot  justifiable,  as  follows  :^ 2  "jf  j^  ^j^^  efforts  made 
as  aforesaid  to  suppress  such  assembly  and  to  arrest  and  secure 
the  persons  composing  it,  who  refuse  to  disperse,  though  the 
number  remaining  is  less  than  twelve,  any  such  persons,  or 
any  persons  present  as  spectators,  or  otherwise,  are  killed  or 
wounded,  said  magistrates  and  officers,  and  persons  acting  with 
them  by  their  order,  shall  be  held  guiltless  and  justified  in 
law."  The  law  in  Massachusetts  is  practically  the  same. ^2  The 
common  law  rule  is  more  cautiously  expressed  by  ]\Ir.  Bishop  as 
follows:  "If  rioters  and  other  like  offenders  stand  their 
ground,  and  only  by  killing  them  can  the  disorder  be  sup- 
pressed, they  who  do  it  are  justified."^-*  The  law  in  New  York 
provides:  "Every  endeavor  must  be  used,  both  by  the  magis- 
trates and  civil  officers,  and  by  the  officer  commanding  the 
troops,  which  can  be  made  consistently  with  the  preservation 
of  life  to  induce  or  force  the  rioters  to  disperse,  before  an 
attack  is  made  upon  them  by  which  their  lives  may  be  en- 
dangered."^^ 

§  89.  Security  of  the  peace.— Where  a  person  threatens  to 
commit  a  crime  or  breach  of  the  peace,  he  may  be  required 
to  give  security  of  the  peace.  The  law  as  stated  by  Black- 
stone^^  may  be  traced  back  to  the  creation  of  the  office  of 
justice  of  the  peace  and  is  substantially  in  force  at  the  present 
time,  being  embodied  in  the  criminal  codes  of  many  states.^" 
The  proceeding  generally  falls  within  the  jurisdiction  of  any 
judge  or  justice  of  the  peace,  and  may  be  instituted  by  him 
ex  officio,  if  the  threat  is  made  in  his  presence,  otherwise  upon 
the  sworn  application  of  the  person  threatened  showing  the 
danger  of  the  crime  (articles  of  the  peace).  A  warrant  is 
thereupon  issued  and  the  accused  apprehended  and  examined ; 

11  Steplieii    Hist.    Grim.    Law,    I,  (Laws  1887,  ch,  765,  Revised  Laws, 

200-206;   Blackstone,  IV,   142-1-13.  ch.  100,  §39). 

1- Criminal  Code,  255.  i-t  New  Criminal  Law,   II,  6')5,  4; 

13  Rev.  Laws,  ch.  211,   §  6.     Mas-  Pond   v.   People,   8  Mich.   150    (dic- 

saehusetts  also   authorises  municipal  tum). 

niitliorities    to    forbid     the     sale     of  i' Code  Crim.  Proc,  §   114. 

liquor  in  cases  of  riot  or  great  pub-  i"  IV,  251-255. 

lie  excitement   for  a  period  not  ex-  "Mass.  Rev.  Laws,  ch.  216;   New 

ceeding  three  days  at  any;  one  time  York    Code    Crim.    Proc,    §§    84-99; 

Illinois  Crim.  Code,  Div.  V. 


90  PEACE  AND  SECURITY  FEOM  CRIME.        §  90 

if  there  appears  to  be  danger  of  his  committing  the  crime,  he 
is  required  to  enter  into  a  recognizance,  with  sufficient  surety, 
to  keep  the  peace  either  generally  or  towards  the  person  threat- 
ened, for  a  time  specified  in  the  recognizance;  and  upon  his 
violating  the  stipulation  the  undertaking  may  be  enforced. 
While  the  proceeding  for  this  purpose  is  had  before  a  judge  or 
justice  of  the  peace,  it  is  not  in  the  nature  of  a  criminal  prose- 
cution, the  machinery  of  the  courts  being  here  used  for  the 
purpose  of  police  restraint :  therefore  the  rule  against  double 
jeopardy  does  not  ap]ily.^^ 

;;  90.  Concealed  weapons.— Of  the  conditions  tending  to 
facilitate  the  connaission  of  crime,  the  carrying  of  weapons 
should  first  be  mentioned.  As  it  is  not  customary  in  civilised 
communities  to  carry  weapons  about  the  person,  the  habit  of 
doing  so  may  be  regarded  to  some  extent  as  an  indication  of 
lawlessness.'"  The  police  power  is  here  however  confronted 
l)y  a  constitutional  right.  The  Second  Amendment  of  the 
Federal  Constitution  says:  "A  well  regulated  militia  being 
necessary  to  the  security  of  a  free  state,  the  right  of  the  people 
to  keep  and  bear  arms  shall  not  be  infringed."  Provisions 
of  the  same  import  are  found  in  most  state  constitutions,  the 
pur[)os('  of  self-defence  being  in  .some  cases  added  to  that  of 
the  common  defence.  Tliis  constitutional  guaranty  has  not 
prevented  the  very  gcnci-al  enactment  of  statutes  forbidding 
the  carrying  of  concealed  weapons,  and  the  possession  or  use 
of  certain  dea»ll\'  weapons  not  generally  used  ("or  legitimate 
|iiii-|»<ises,  such  as  metallic   knuckles  or  dxiianiite   bombs,-"   or 

'-Statf  V.  Vankirk,  :j7   lud.   ll'l.  of   the   poac-o   is   held    \n    justify   the 

>»  Sco  .North  V.  I'coplu,  l.'Jit  111.  >S1.  |)rohibitioii    of    paruiles    with    arms, 

It  has,  howcvor,  been  hehl  in  Florifla  although  the  arms  are  so  fixed  that 

that  carrying  roncculed   \vra|)onH   in  they     cannot     discharge     a     missile. 

a    "quiet    and     |ii-acralil<'     manner"  "  Tlie   men   who   carried   tliese  wcap- 

•  loeu  not  tend  toward  a  hreach  of  the  ons  could  not  a(;tuaily  fire  them,  but 

pvacc    m    an    to    justify    .in    arrest  it  would  be  generally  supjiosed  that 

without    warrant;   and    tliis  although  they   could.      With    the   exception   of 

the   weapon    had    .j\iKt    been    used    for  being  actually  shot  ilown,  all  the  evils 

an    awmiiill.      It    was    therefore    heM  which  the  statute  intended  to  remedy 

that   the  act   of   tin-   pcrsun   arrested  still  exist  in  the  parade  in  which  the 

in   killing   the  ofTicer  did    not   <'onsti-  defendiml      Inuk     p.ir)."       Common- 

liito  murder    (Koberson   v,  Htatc,  42  wi'alth   v.    Murphy,    Kid   .Mass.  171. 
Kla.   'JSn.   L'H  Son.  424,  r,'2   \..   R,   A.  -"•  Illinois  Trim.  Code.  §§  .'ita,  54d; 

Tfjl).    In  .MaNWichuwtts,  on  the  other  N    Y.   I'cn.ii  <  ode,  §    IJii. 
hand,  the  power  to  (irevent  breaches 


§  91  MILITARY  ORGANISATIONS.  9I 

the  carrying  of  arms  in  a  threatening  manner.-'  The  constitu- 
tionality of  this  legishition  has  been  unheld  from  an  early  date 
in  the  states  in  which  it  has  been  (questioned.--  In  Kentucky 
it  was  declared  unconstitutional,--'  but  expressly  authorised 
by  subsequent  constitutional  amendment. 2-*  We  find  here  an 
application  of  the  general  principle  that  constitutional  rights 
must  if  possible  be  so  interpreted  as  not  to  conflict  with  the 
requirements  of  peace,  order  and  security,  and  that  regulations 
manifestly  demanded  by  these  requirements  are  valid,  pro- 
vided they  do  not  nullify  the  constitutional  right  or  materially 
embarrass  its  exercise. 

§  91.  Military  organisations.— In  a  number  of  states  the  law 
forbids  any  body  of  men,  other  than  the  regularly  organised 
militia  and  the  United  States  troops,  to  associate  themselves 
together  as  a  military  company  or  organisation,  or  to  drill  or 
parade  with  arms,  without  the  license  of  the  governor. ^^  This 
provision  has  been  upheld  in  Illinois^''  and  in  ]\Iassachusetts,^'^ 
while  the  Supreme  Court  of  the  United  States  has  held  that 
the  federal  constitution  applies  in  this  matter  only  to  federal 
legislation  and  therefore  does  not  control  the  action  of  the 
states.-^  The  existence  of  uncontrolled  military  organisations, 
while  perhaps  not  an  encouragement  to  the  commission  of 
crime,  may  yet  constitute  a  serious  menace  to  the  public  peace 
and  an  obstacle  to  the  orderly  anl  effectual  enforcement  of 
the  law.    As  such  it  would  afford  a  very  legitimate  ground  for 

21  state  V.  Hogan,  63  Ohio  St.  -s  Illinois  Military  aud  Naval  Code 
202,  58  N.  E.  572.  1899,  XI,  §  2.     "  It  shall  not  be  law- 

22  State  V.  Mitchell,  3  Blaekf.  Ind.  ful  for  any  body  of  men  whatever 
229;  State  V.  Reid,  1  Ala.  612,  1840;  other  than  the  regular  organised 
Nnnes  v.  State,  1  Ga.  243,  1846;  militia  *  *  *  to  associate  them- 
Slate  V.  Chandler,  5  La.  Ann.  489,  selves  together  as  a  military  company 
1860;  Haile  v.  State,  38  Ark.  564,  or  organisation  or  to  drill  or  parade 
1882.  ^Aith  arms  in  this  state  except  that 

23  Bliss  V.  Commonwealth,  2  Lit-  permission  may  be  granted  by  the 
tell  (Ky.)  90.  governor,    etc."      Mass.    Rev.   Laws, 

24  Const.  1891,  §  1,  No.  7,  enu-  ch.  16,  §  147;  N.  Y.  Military  Code, 
merating     among      the      inalienable  §   177. 

rights :  the  right  to  bear  arms  in  de-  2(i  Dunne   v.   People,   94   111.    120, 

fense  of  themselves  and  of  the  state,  1879. 

subject  to  the  power  of  the  general  27  Commonwealth  v.  Murpliy,  Kii) 

assembly    to    enact    laws    to   prevent  Mass.  171,  32  L.  R.  A.  606. 
persons     from      carrying     concealed  2s  Presser    v.    Illinois,    116    T'.    S. 

weapons.  -52,  1886. 


92  PEACE  AND  SECUEITY  FROM  CRIME.  §  91 

restrictive  police  reg:iilation,  in  the  absence  of  any  positive  con- 
stitutional right,  and  since  in  Illinois  the  constitution  is  silent 
as  to  the  right  to  bear  arms,  the  decision  rendered  in  that  state 
can  be  questioned  only  on  the  ground  that  contrary  to  the  doc- 
trine prevailing  in  the  same  jurisdiction,  it  sanctions  the  delega- 
tion of  a  discretion  unregulated  by  laAv  to  an  executive  officer, 
and  thus  violates  the  principle  of  equality.-^  The  Sui)reme 
Court  of  Illinois  has  however  also  expressed  the  opinion  that  the 
right  to  bear  arms  is  not  even  remotely  involved  in  the  question 
of  the  validity  of  police  regulations  regarding  military  com- 
panies,-"' and  the  United  States  Supreme  Court  has  expressed 
itself  to  the  same  eifect.^^  And  the  same  view  was  necessary 
to  support  the  decision  in  Massachusetts,  where  the  right  to 
bear  arms  is  recognised  by  the  constitution.  The  court  says 
that  the  right  to  keep  and  bear  arms  for  the  common  defence 
does  not  include  the  right  to  associate  together  as  a  military 
organisation  or  to  drill  and  parade  in  cities  and  towns.  This 
may  be  conceded  to  be  true  as  far  as  parading  on  the  streets 
is  concerned ;  l)ut  the  principle  is  stated  in  a  broader  form,  as 
applying  to  military  organisation  in  general.  The  constitu- 
tional right  is  thus  recognised  merely  as  ;in  individual  right. 
Tlic  prevailing  doctrine  seems  to  be  that  the  constitutional 
recognition  (if  tin'  militia  implies  a  limitation  upon  the  right 
"f  military  association  in  other  and  more  .irregular  forms.  It 
is  clear  llial  ii"  the  state  pays  in  whole  oi-  in  part  the  expense 
of  arming  and  drilling  the  militia,  and  of  erecting  armories, 
it  innsl  have  power  In  control  its  size,  and  this  again  implies 
some  pow<'r  ol"  select  ion.  There  cannol  in  other  words  be  an 
indiscriminate  right  to  join  the  militia.  As  a  matter  of  fact 
the  statiitory  maxinnim  lunnber  (»r  the  state  militias  will  gen- 
erallv  lir  i'oiind  to  accommodate  only  a  small  fraction  oi'  the 
male  adult  popniation.  I'.nl  this  necessary  power  of  selection 
may  still   hi-  controlled   1)\-   law  and   should    he  so  exercised   as 

»<•  8  «43  infni.  < otinn.iiKl    by    tlic    United    Stntos    or 

•■*""ThiH    Hcr-iion     [  f<irl»i<l<liii;r    (ir-  sl:itc    sliall    he    pi-rniittcd    to    i)!ir!ulo 

({tiniiuition    iiikI    drilliiiK    wifliont     Ii  uitli    :ir?iis    in    populous   commuiiitieH 

I    hujt    no   b«*iiriiiK   wlintovcr   on  in    u    niiiltcr    within    the    rcjjuijition 

riKht,  uhatpviT  it   may  be,  ami  and    Huh.jtM-l    to    I  lie    police   power   of 

nv  will  enter  npoti   no  diHruNHion   of  tiie  Hlate. "    Dunne  v.  I'eople,  94  111. 

thai    qneNlion.         Whctlier    liodieM    of  I'JO. 

miMi    wifh    military    orxaniMnf ion    or  •'>  I'reHser    v.     Illinois,     1  Hi     IJ.    S. 

..il.in.iu..     iiniler     n<»     diheiplinc     or  -52, 


g  92  BODIES  OF  ARMED  MEN.  93 

to  make  arbitrary  discrimination  impossible'*-  Is  the  "security 
of  the  free  state"  consistent  with  the  al)solute  power  of  the 
executive  to  control  the  constitution  of  the  militia .'  It  would 
seem  to  be  far  more  consonant  with  the  principle  of  equality 
to  allow  the  right  of  military  association  to  all,  subject  to  such 
regulations  as  to  prevent  danger  to  public  peace  and  order, 
and  to  secure  the  uniformity  and  efficiency  required  for  i)ublic 
service.  The  claim  that  a  body  of  men  cannot  be  safely  en- 
trusted with  the  privilege  of  military  organisation-*'^  should  be 
established  in  accordance  with  definite  principles  of  law. 

§  92.  Bodies  of  armed  men  (Pinkerton  men).'*^— A  some- 
what peculiar  form  of  military  organisation  is  presented  by 
the  existence  of  bodies  of  armed  men  used  for  the  protection 
of  property  in  times  of  disorder  and  especially  during  labor 
troubles.  Legislation  has  been  enacted  in  a  number  of  states 
directed  against  the  practice  of  letting  out  and  employing  such 
armed  forces.  Thus  Wisconsin  forbids  the  employment  of 
bodies  of  armed  men  to  act  as  militiamen,  policemen  or  peace 
officers  who  are  not  duly  authorised  as  such  under  the  laws  of 
the  state. 2^^  Illinois  forbids  private  detectives  to  assume  to  act 
as  officers  of  the  law.^*^  Minnesota  forbids  the  keeping  of  pri- 
vate detective  offices  for  the  purpose  of  letting  out  armed  men 
for  hire.^^  Massachusetts,^^  Texas,-^*^  and  West  Virginia^"  for- 
bid the  employment  of  non-residents  for  that  purpose,  and  New 
York,-*^  Pennsylvania^-  and  Illinois^-*  provide  that  no  non- 
residents shall  be  employed  for  police  duty  by  the  sheriff.  The 
constitution  of  Idaho^^  provides  "No  armed  police  force,  or 
detective  agency,  or  armed  body  of  men,  shall  ever  be  brought 
into  this  state  for  the  suppression  of  domestic  violence  except 
upon  application  of  the  legislature,  or  the  executive  when  the 
legislature  cannot  be  convened." 

There  is  no  doubt  that  the  state  may  exclude  non-residents 
from  being  vested  with  official  powers  under  its  laws.     The 

3'-  The  Supreme  Court  of  Massa-  •'"  Criminal  Code,  §  256q. 

chusetts    states    expressly    that    dis-  ■*"  General  St.  1894,  §  6960. 

crimination    in    this    matter    is    not  -'s  Rev.  Laws,  ch.  108,  §  11. 

open  to  constitutional  objections.  ""  Laws  1893,  ch.  104. 

33  In  Illinois  the  license  was  re-  +"  Laws  1893,  ch.  4'J. 
fused  as  anarchist  association.  •*!  Laws  1892,  ch.  272. 

34  Industrial     Commission     Report,  -i^  Purdon 's  Digest,  189.5,  p.  169. 
V,  142-147.  *■■•'  Act  Juno  19,  1893. 

35  Laws   1893,  ch.   163.  4*  Art.  14,  §  6. 


94  PEACE  AND  SECUKITY  FEOM  CRIME.  §  93 

tliscriiiiination  against  iiou-resideuts  iu  the  employment  of 
armed  bodies  of  men  not  vested  with  any  official  authority, 
might  conceivably  raise  a  federal  question  Avhich,  however, 
has  not  as  yet  been  passed  upon  by  the  courts.-*^'  Apart  from 
such  discrimination  it  seems  clear  tliat  the  state  may  prohibit 
the  use  of  organised  bodies  for  the  protection  of  property; 
for  the  natural  right  of  self-defence  must  not  be  extended  to 
sanction  private  warfare,  or  to  supersede  the  proper  and  ex- 
clusive functions  of  the  regularly  constituted  public  authorities. 
A  precedent  for  this  legislation  may  be  found  in  the  English 
statutes  of  liveries  directed  against  the  maintenance  of  bodies 
of  armed  retainers  by  the  lords  and  barons.-*'' 

i  93.  Restraints  upon  business  and  upon  particular  deal- 
ings.—Certain  cla.sses  of  business  may  be  i:)laced  under  special 
control  because  they  furnish  facilities  for  the  commission  of 
crimes  (tr  for  their  concealment.  Crimes  may  to  some  extent 
\u-  preventi'cl  l)y  properly  restricting  the  sale  of  weapons,  poi- 
sons ov  explosives;  ami  their  detection  nuiy  be  facilitated  by 
a  strict  supervision  of  these  trades.  The  law  may.  therefore, 
forbid  till'  sale  of  jioisons  except  upon  responsible  prescrip- 
tions; and  it  may  require  the  keeping  of  registers  showing 
every  .sale  of  weajjons,  with  the  name  of  the  purchaser.-*"  As 
stolen  goods  usually  find  their  way  into  the  hands  of  ]iawn- 
brokers  or  dejilci's  in  second-hand  goods,  these  trades  iiuiy  l)e 
kept  under  conti-oj  iiy  llic  i'i'(|iiii-cnient  of  a  license,  by  deniiind- 
inp  reports  and   autliorising  inspection."^ 

The  prevention  oi-  detection  ol'  crime  may  also  justify  re- 
straints upon  transactions  apai-t  fi-om  regular  trades.  Tlie 
great  facility  with  wliicli  llie  llieTt  of  cotton  in  1lie  seed  may 
be  concealed  led  llic  legislalui'e  o|"  N()i-tli  Carolina  lo  make  h 
H  ini.sdemeanor,  lirsl,  to  sell  small  (juantities  of  such  cotton  be- 
tween Hunset  and  sunrise;  then  to  make  any  such  sale  without 
writing  ami  without  docketing  the  receipt  for  the  i)urchase 
price   with    till-   justice   of   tin-    peace.      The   statute    was    iiitheld 

<o  Hoe    Kcporl    of    lii<liiMlii:il    <'(iiii  ill.  L".il,  ISSJ.     in    I'raiitc,  iimlir   ,\rt, 

miHHion,  V,  p.  144;  j  710,  infm.  ir>l7   nC  tlic   Forest  Code,   (<Htjil)iisli- 

♦'KIi'hIh'h    HiHi.    ('rim.    I,;i\v,    ill,  inontH  fur  llic  wurkiiifr  of  wood  may 

■"•r.  ■••^H.  iiol    !)(•  cjirricil   on    williiii   .TOO   meters 

MliliiiiH    «'rim,     Cmlc,     9     r>\     I.,     c,       uf  'ii     fnrest     willlnnl     H|)eci;il  ;ic||||iiiis- 

li!ili\e   |>crinil,   tlie   |iiir|iose  li<'iiij;   to 

^^iiruiKl  Ua|*i<lN  v.  Urnndy,  In.",  reijiict'  tin-  ilaiijjer  nC  | hefts  of  wood. 
Mich    '■"'■     IjMindcr  v.  ('Wirm^n,    III 


§  94  CRIMINAL  CHAEACTER.  95 

as  a  legitimate  police  regulation.'*^  Such  regulations  for  the 
prevention  of  theft  are  to  be  found  in  the  old  Anglo-Saxon 
laws/^" 

§  94.  Criminal  character.— The  attitude  of  modern  social 
science  toward  the  graver  crimes  against  person  and  property 
is  that  their  commission  is  in  most  cases  attributable  to  heredi- 
tary causes  or  social  conditions  which  produce  degeneracy  and 
criminality.  The  attitude  of  the  law  is  that  the  commission 
of  each  offense  involves  a  distinct  moral  responsibility  of  the 
individual,  which  demands  and  justifies  the  infliction  of  pun- 
ishment. The  law  must  deal  primarily  with  acts  and  not  with 
dispositions,  and  its  restrictive  measures  for  the  protection 
against  crime  must  apply  to  all  persons  alike.  In  the  ab.sence 
of  a  well  defined  mental  disease  it  cannot  stamp  character  as 
criminal  irrespective  of  the  commission  of  specific  acts,  and 
place  persons  affected  with  such  character  under  special  con- 
trol or  disability. 

§  95.  Reputation.  —  The  same  must  be  true  of  character  in 
the  sense  of  reputation.  Blackstone^  refers  to  a  statute  of 
Edward  III,  empowering  justices  of  the  peace  to  bind  over  to 
the  good  behavior  towards  the  King  and  his  people,  all  them 
that  be  not  of  good  fame ;  and  these  include  not  only  persons 
guilty  of  distinct  acts  of  disorderly  conduct,  but  also  such  as 
keep  suspicious  company,  or  are  reported  to  be  pilferous  or 
robbers,  such  as  sleep  in  the  day  and  wake  in  the  night, 
the  putative  fathers  of  bastards  "and  other  persons  whose 
misbehavior  may  reasonably  bring  them  within  the  general 
words  of  the  statute  as  persons  not  of  good  fame:  an  expres- 
sion, it  must  be  owned,  of  so  great  latitude  as  to  leave  much 
to  be  determined  by  the  discretion  of  the  magistrate  himself. '  ~ 

This  does  not  appear  to  be  the  common  law  in  this  country, 

40  State  V.  Moore,  104  N.   C.   714,  r.ostubbs'   Select   Charters,   p.   72, 

1889;    also   Davis   v.   State,   68   Ala.  ch.  tJ. 

58,  1880,  cited  with  approval  in  Budd  1  IV,  p.  256. 

V.  New  York,   143  U.  S.  517.     Ala-  -•  Gnoist     Self -Government,     §    46, 

bama  forbids  the  sale  of  cotton  in  says   of   this   legislation   that   if  a  1- 

the    seed    in    certain    counties    alto-  ministered    by    other    officers    than 

gether,    except    on    legal    process    or  English    justices    of    the    peace    it 

under   mortgages   or  in   payment   of  might    be    abused    for    an    alarming 

rent,  cotton  in  that  form  being  held  exercise  of  arbitrary  power, 
not    to   be   in   a   vendible   condition. 
Mangan  v.  State,  76  Ala.  60. 


95  PEACE  AND  SECURITY  FROM  CRIME.  §  96 

but  some  of  the  states  have  adopted  similar  legislation.  Coii- 
jnrress  by  act  of  July  29,  1892,  amended  July  8,  1898,  applying 
to  the  District  of  Columbia,  authorised  the  punishment  by  a 
fine  or  the  binding  over  to  good  behavior,  of  specific  categories 
of  persons,  including  "siispicious  persons."  The  Court  of 
Appeals  of  the  District  of  Columbia  declared  the  conviction  of 
a  person  merely  on  the  ground  that  he  was  a  suspicious  person 
to  be  void,  the  provision  of  the  act  in  this  respect  violating 
the  Fourth  and  Eighth  Amendments  of  the  federal  constitution. 
' '  Mere  suspicion  is  no  evidence  of  crime  of  any  particular  kind, 
and  it  forms  no  element  in  the  constitution  of  a  crime."  A 
charge  of  general  suspicion  is  incai)able  of  being  met.  Even 
if  reputation  could  be  regarded  as  an  element  in  the  legitimate 
ofl'cnse,  it  Avould  not  justify  the  government  in  treating  tiie 
party  having  such  reputation  as  a  criminal.  The  prisoner  was 
therefore  discharged  on  habeas  corpus.-^ 

^  96.  Known  thieves.  — Some  states,  however,  recognise  the 
power  of  punishing  *' known  thieves,"  by  which  nnist  be  \u\- 
(ler.stood  persons  having  the  character  or  reputation  of  thieves. 
While  Ihe  cliaracter  iii.iy  be  proved  hy  showing  specific  acts, 
the  i)Mnishment  is  not  for  these  acfs  but  Tor  tlu'  gt-neral  conduct 
whicli  they  indicate,  and  a  conviction  nuiy  umh'r  the  provisions 
of  some  statutes  be  baseil  on  evidence  of  rei)utation.^  The 
Supreme  Conrf  of  Ohio  said  in  a  case  uphohling  this  power: 
"It  is  a  mistake  to  supi)ose  that  otVenses  nnist  be  confined  to 
specilic  acts  of  conniiission  or  omission.  A  general  course  oi' 
conduct  OI-  nio(h'  of  life  which  is  prejudicial  to  the  public  ^\•e!- 
farc  may  lik(>wise  he  prohibited  and  punished  as  an  otTense.     * 

•  •  'I'lii- offense  consists  no|  in  pai-liculai- acts  hut  intlu'mO(h> 
of  life,  the  habits  and  practices  of  the  a(!cuse(l  in  respect  to  the 
r'haracter  or  traits  whicli  it  is  the  object  of  the  statute  creating 
the  olTeiise  to  suppress."''     The  Ix-ttci-  doctrine   is  that  a   con- 

•T  Htoutontiiir^jli   v.    Knizier,  If)  App.  Ilic    kniiwii    ch.ii.irtrr    of    tlic   porpon. 

D,    C.    229,    -JM     L.    |{.    A.    2L'().         In  I'\.r     |.rruli.ir      inlci  pirlatidii      of     ;i 

Kn^'Iiind    iimlcr    flic      Prevention     nf  wtiitntc      <lisiTiniiii;itin;;      .•ippMicnlly 

•  'rinifH  Act,  1H71,  8  1.'),  HUHpocteil  upon  the  hasis  of  re|)iitiition,  .see 
porminN  frequent iii(j  pnl)lic  |»lnces  Stntc  v.  Worltinan.  ^!^  W.  Va.  307, 
with  inti'nt  to  (summit   felony  may  \f  it    I,.   K.   A.  <}()(». 

piiniHiie.l,   and    tlie   intent    to   <(iininit  '  Wnrl.l  v.  Htate,  .OO   M'l.  •»!»,    IS7S. 

the  felony  need  not  he  proved  hy  evi  •  Morgan  v.  Nolto,  ',\7  Ohio  St.  -'.i, 

ilnncti   of    Hpeeifle    iictH,    but    may    be  1878. 
made    to    apfiear    to    tlie    r'onrt    from 


§  97  VAGRANCY.  97 

viction  can  he  based  only  on  the  proof  of  specific  acts"  and 
that  notoriety  cannot  create  a  presumption  of  j^uiltJ 

§  97.  Vagrancy,  vagabondage,  and  criminal  idleness.'— A  ic- 
markable  ease  of  an  apparent  recognition  of  a  condition  of 
criminality  is  presented  by  the  legislation  against  vagrancy, 
vagabondage,  and  criminal  idleness.  This  legislation,  in  Eng- 
land, goes  back  to  the  time  of  Edward  III.,  and  was  firmly 
established  at  the  beginning  of  our  government.  Vagrancy  and 
vagabondage,  include  many  distinctly  illegal  acts  violating  pub- 
lic order  or  morality;  especially  begging  on  the  streets,  and 
night  walking  on  the  part  of  prostitutes,  may  be  regarded 
clearly  as  offensive  and  disorderly  conduct  in  public  places. 
But  the  statutes  also  punish  acts  which  in  themselves  appear 
innocent,  as  loitering  about  public  places,  etc.,  when  done  by 
persons  of  a  certain  description.  So  the  Illinois  statute  declares 
to  be  vagabonds  all  persons  *  *  *  "who  are  habitually 
neglectful  of  their  employment  or  their  calling,  and  do  not 
lawfully  provide  for  themselves,  or  for  the  support  of  their 
families;  and  all  persons  who  are  idle  and  dissolute  and  who 
neglect  all  lawful  business,  and  who  habitually  mis-spend  their 
time  by  frequenting  houses  of  ill-fame,  gaming  houses  or 
tippling  shops;  all  persons  lodging  in  or  found  in  the  night- 
time in  out-houses,  sheds,  barns  or  unoccupied  buildings  or 
lodging  in  the  open  air,  and  not  giving  a  good  account  of 
themselves;  and  all  persons  who  are  known  to  be  thieves, 
burglars  or  pickpockets,  either  by  their  own  confession  or 
otherwise,  or  by  having  been  convicted  of  larceny,  burglary, 
or  other  crime  against  the  laws  of  the  state,  punishable  by 
imprisonment  in  the  state  prison,  or  in  a  house  of  correction  of 
any  city,  and  having  no  lawful  means  of  support,  are  habitually 
found  prowling  around  any  steamboat  landing,  railroad  depot, 
banking  institution,  broker's  offtce,  place  of  public  amusement, 
auction  room,  store,  shop  or  crowled  thoroughfare,  car  or  omni- 
bus, or  at  any  public  gathering  or  assembly,  or  lounging  about 

•5  So  a  person  cannot  be  convicted  professional  thief ;  Bycrs  v.  Com.  42 

as  a  common  gambler  without  proof  Pa.  St.  89. 

of  acts  of  gambling;   Com.  v.  Hop-         'State  v.   Beswiek,   13  B.   I.   211, 

kms,  2  Dana,  418;   in  Pennsylvania  a    leading    case    upon    tlie    subject, 

it  was  said  that  the  offense  consists  See    also:    Buell    v.    State,    45    Ark. 

ii.    frequenting   places    for   unlawful  336,  "any  person  whose  known  cbar- 

purposes,  not  in  being  a  reputed  or  acter  is  that  of  a  prostitute." 


98  PEACE  AND  SECURITY  FKOM  CRIME.  §  98 

any  court  room,  private  dwelliiiii  liouses  or  out-houses,  or  are 
found  in  any  house  of  ill-fame,  jramblinw  house,  or  tippling 
shop. '''^  The  offense  of  criminal  idleness  is  very  similar  in 
character.^ 

§  98.  Vagrancy  not  a  status  of  dependence.— A  peculiar  view 
(»f  the  law  ui'  va^raiie\  was  taken  in  some  earlier  cases.  A 
statute  of  Elaine  authorised  any  two  or  more  overseers  to  com- 
mit to  the  workhouse  *  *  *  '*All  i)ersons  able  of  body  to 
work,  and  not  having-  estate  or  means  otherwise  1o  maintain 
themselves  who  refuse  or  neglect  so  to  do.  living  a  dissolute 
or  vagi'ant  life  and  exercising  no  lawful  calling  oi"  business 
suificient  to  gain  an  honest  livelihood."  A  prostitute  was  com- 
mitted luider  this  authority  and  apjilied  for  habeas  corpus. 
The  court  admitted  that  the  overseers  had  no  criminal  jurisdic- 
tion, and  had  no  right  to  act  on  tin*  ]")('titioner  as  an  offender; 
the  commitment  was.  however,  upheld  as  a  jiolice  measnn^.^" 
The  argument  is  somewhat  confused,  hut  justilies  the  eommit- 
nuMit  u]>on  three  grounds:  tliat  it  was  for  the  woman's  own 
benefit,  that  it  was  a  sort  ol'  (|nar;iii1  iiie  to  protect  the  com- 
nnniity  I'i'oiii  containiiuit  ion,  and  that  the  pet  it  ioner's  dissolute 
habits  were  h-adini;  her  to  indigene(\  so  that  she  might  be 
treated  as  an  iii(liL;cnt  although  sIk'  had  not  yet  i-eceived  alms. 
All  thi-i'c  iii-gumeids  ai-e  pal])ably  unsound:  there  exists  no 
authorits'  to  deprive  s;iiie  adults  of  tlieii-  lil)ei'ty  simply  as  a 
means  of  improvement  ;  the  (|uarantine  of  those  atVected  l)y  con- 
tagious disease  is  justified  an<l  limited  hy  the  strictest  nec(\ssity 
of  physical  prntecti(tn.  and  the  coniinit  mciil  of  pau|)ers  is 
merely  ii  condition  iiiniexed  to  their  chiiin  to  |)ul)lie  alms,  and 
iioi  ;i  pdwrr  l(t  1 xei-cised  hy  force.  A  sniiitiiary  administra- 
tive connnilmeiit  oj'  prosl  it  utes  as  ;i  police  measure  might 
logically  lejid  to  indcjinitcly  pi-olonged  drprival  iou  of  liherly 
.since  the  vicious  disposilion  whicli  Juslilii's  the  (UM<_;inal  deten- 
tion would  also  justify  its  coid  inuanei'.  The  decision  shows 
the  diint:cf  t>\'  i<.Mi<u'in;i  lln'  iioiimhnN  lini-  helweeu  police 
iiieiisures  and  crinnnal  puiiishmenl.  It  \\;is  lajei-  on  o\'eiTuled 
as  incoMHJHtent  with  the  l'\iurtccntli  A  iiieiidineiil .' '      ||   was  also 


"CriminnI  Coilc,  jS  L'Td.  i"  Ailcliii.-  (1.    Xntt's  -ms.'.    II    .\U,. 

•Com.     V.    Tiiy,     170     Muhh.     \\)'2,     L'OS,    1K.'?4. 
48  N.   E.   lOHO.  II  |',,rtl;iii.|   \.   I'.:nijr,„-,  (i.",   M,-.   12G 


§  99  VAGKANCY.  99 

said  in  a  New  York  case^-  that  a  person  may  be  convicted  for 
vagrancy  whethoi"  his  condition  is  his  niisfortnnc  oi-  his  fanlt, 
since  his  individn.il  lil^crty  must  yield  to  the  |)ul)lic  ntn-t^ssity 
or  the  public  good. 

§  99.  Vagrancy  a  criminal  offense.— But  the  sound  doctrine 
is  luidoubtedly  that  vagrancy  anil  criminal  idleness  do  not  con- 
stitute in  the  eye  of  the  law  a  social  status  to  be  dealt  with 
by  police  control,  but  criminal  acts  to  be  i)unished  by  the 
criminal  courts.  It  is  necessary,  therefore,  to  determine  where 
the  gist  of  the  offense  lies.  It  seems  that  the  criminality  rests 
upon  a  combination  of  three  circumstances:  the  absence  of  law- 
ful means  of  support,  the  neglect  to  seek  employment,  and  the 
offensive  public  exhibition  of  such  condition.  The  lack  of 
means  of  support  imposes  the  obligation  to  work  since  other- 
wise the  burden  of  support  falls  upon  the  public ;  the  provisions 
of  the  law  are  "possibly  designed  to  protect  the  public  from 
expense  quite  as  much  as  from  disorder. "^ -^  "He  who  being 
able  to  work  and  not  able  otherwise  to  support  himself,  de- 
liberately plans  to  exist  by  the  labor  of  others  is  an  enemy  to 
society  and  to  the  commonwealth."^^  Therefore  there  can  be 
no  conviction  if  there  are  independent  means  of  support;''"' 
but  the  lack  of  such  means  may  be  inferred  by  the  jury  from 
the  fact  of  prostitution.'*'*  The  neglect  to  seek  employment 
seems  essential  since  without  it  mere  misfortune  would  be 
punishable.'"  The  third  requirement,  which  is  perhaps  not 
essential,  adds  to  the  element  of  public  danger  that  of  oft'ensive- 
ness  and  disorder,  and  needs  the  aggravation  of  the  other  two 
circumstances."^  In  California  it  has  been  held  that  idle  wan- 
dering and  roaming  about  the  streets  at  late  and  unusual  hours 
of  the  night,  may  be  punishable  without  proof  of  lack  of  means 
of  support  ;'^  but  this  must  be  regarded  as  doubtful  unless  there 
is  also  disorderly  conduct.  In  Michigan  it  was  held  that  the 
mere  suspicion  that  a  woman  walking  on  the  street  at  night  is 

12  People    V.    Forbes,    4    Park.    Cr.  i«  Conimonwraltli    v.    Hoherty.    1.H7 

Cas.  611,  1860.  Mass.  24.5. 

"Sarah  Way's  case,  41  Mich.  299.  i'  In  re  Jordan,  90  Mich.  3,  1892. 

14  State  V.  Hogan,  63  Oh.  St.  202,  i**  It  may  also  constitute  a  form  of 

58  N.  E.  .572.  disorderly  conduct.     Jn  re  Stegenga. 

isShanley    v.    Wells,    71     111.    78;  (Mich.),  94  N.  W.  .385. 

Taylor  v.  State,  49  Ala.  19.  "  Ex  parte  McCarthy,  72  Cal.  384, 

1887. 


100  PEACE  AND  SECURITY  FROM  CRIME.  ^  100 

a  prostitute,  will  not  justify  an  arrest  in  the  absence  of  any 
act  on  her  part  showing:  that  her  purpose  is  illesral.-'^ 

§  100.  Vagrancy  as  a  means  of  dealing  with  suspects.— But 
while  it  should  be  insisted  that  the  eiminiission  of  si)ecilic  crim- 
inal acts  is  essential  to  constitute  vagrancy,  and  that  it  must 
be  treated  as  a  crime  and  not  as  a  status,  there  is  no  doubt  that 
the  comprehensive  definition  of  the  offense  affords  the  means 
of  dealing:  with  the  criminal  elements  of  the  population  and 
keeping  them  temporarily  under  restraint  *^n  cases  of 
emergency.  The  New  York  City  Magistrates'  Report  of  1897 
says:  "^lany  persons  are  arrested  under  suspicious  circum- 
stances, such  as  well  known  criminals  mysteriously  loitering 
about  the  streets  at  night,  or  fre(iuenting  crowded  jilaces,  or 
per.sons  having  property  in  their  possession  for  which  they  can 
give  no  good  account,  nor  of  themselves.  Fretjuently  such 
arrest  is  the  first  step  in  the  detection  of  some  crime  Avhieh  is 
investigated,  the  proper  complainant  found,  a  formal  eomplairit 
taken,  aiid  the  i)risoner  held  for  trial.  Tn  many  instances  .such 
arrest  prevents  the  commission  of  crime.  During  the  year  the 
total  number  of  such  cases  amounted  to  1897,  of  which  1885 
were  discharged,  and  12  cases  are  pending."  The  disposition 
of  the  cases  shows  that  the  charge  of  vagrancy  serves  simply 
to  justify  an  arrest  made  for  other  purposes  for  which,  how- 
ever, an  arrest  cannot  legally  be  made.  Th(>  practice  of  our 
{)oIi(M'  authorities  thus  sanctions  ;i  form  of  j)reventive  an-csl 
which  has  no  warrant  in  oui-  hiw,  but  which  is  recognised  in 
(iermany  as  within  tlic  inherent  powers  of  the  police.-'  This 
mere  precautionary  arrest  is  lawful  uiidei-  oui-  law  <>iil.\  in  oi-dci- 
lo  jii'cvent  an  offense  which  is  imminent  m-  in  course  of  Ix'ing 
fomiiiitted.'- 

};  101.  Control  over  immigration.  In  the  exerci.sc  of  its 
power  of  terriloi-ial  sovereignl\  thi-  government  of  the  United 
States  has  eiiacterj  l;iws  excluding  imnugrants  helonging  to 
tin-  criminal  ami  otlier  objectionable  classes.-''  Such  control 
over  f<ireigners  does  not  involve  an.\  (piestion  of  domestic  gov- 
ernment   or  of  civil    rights   under   the  constitution.     It  is  an 

•"  ridkirtim    V.    VcrlMTK,   7H    Mich.  21  Mcyor  VonvjiltnnfTHrecht,  p.  162. 

r>73;  liiit  Mr-c  |{ra<l<l,v  v.  .MilliMJ^rcvillc,  -"•!  §  «7,  Hiipni. 

74  Oil,  niO,  M  Am.  Ki'p.  WW,  piiniHli-  -'•'•Art  of  March  :!,    l!to:5;   IJl'  Sfat- 

ing    BtnTt-walkiTH    of    <liHrcputal)lo  iitcH    jit     I.;irjj;n,    121.3,    cousolidatinf,- 

chnrnrfiT.  the  previous  IcgiHlation. 


ij  102  CONTROL  UI'  (U.WlCi'ED   (RIMINALS.  loi 

altogether  different  question  how  far  a  state  may  keep  out  oi' 
its  borders  convicted  criminals,  vagrants,  paupers,  lewd  women 
or  dependent  persons.  Prior  to  the  passage  of  the  federal  im- 
migration act  a  number  of  states  had  enacted  statutes,  under- 
which  immigrants  were  taxed  or  bonds  required  as  seciii-ity 
against  their  becoming  a  charge  upon  the  public.  The  I'nited 
States  Supreme  Court  has  held  with  reference  to  these  acts 
that  any  burden  placed  on  immigrants  generally,  or  according 
to  the  arbitrary  'discretion  of  an  administrative  officer,  is  an 
unconstitutional  restriction  of  foreign  commerce,  but  has  also 
recognised  that  protective  measures  carefully  limited  to  immi- 
grants dangerous  to  the  safety  or  good  order  of  the  state  may 
be  upheld  as  a  legitimate  exercise  of  the  police  power.-'  Little 
occasion  exists  at  present  for  state  control  of  foreign  immigra- 
tion, since  the  matter  is  adequately  covered  by  Federal  legis- 
lation. But  the  same  question  might  arise  in  connection  with 
interstate  migration.  The  (licta  of  the  Supreme  Court  seem 
to  recognise  the  right  of  the  states  to  protect  their  people  from 
dangerous  immigrants,  no  matter  from  where  they  come,-"' 
but  no  such  case  has  been  directly  passed  upon,  and  especially 
the  guaranty  of  equal  rights  to  the  citizens  of  the  several  states, 
has  not  yet  been  considered  in  this  connection. 

§  102.  Control  over  criminals  after  conviction.— While  the 
law  does  not  deal  with  criminality  apart  from  the  commission 
of  specific  criminal  acts,  the  punishment  of  actual  crime  may 
be  made  and  is  made  the  means  of  treating  criminality  as 
such.  This  is  done  partly  through  measures  adopted  during 
imprisonment,  partly  through  substitution  of  control  and  su- 
pervision outside  of  the  prison,  for  imprisonment,  partly 
through  restraints  imposed  upon  a  person  who  has  been  con- 
victed and  suffered  punishment. 

§  103.  Measures  during  imprisonment.— Modern  systems  of 
prison  legislation  are  based  upon  the  theory  that  punishment 
should  be  made  as  far  as  possible  the  means  of  reformation, 
and  that  the  prisoner  shoull  be  treated  in  a  numner  calculated 
to  restore  him  to  society  as  a  more  useful  member  than  he  was 
before.    The  prison  management  and  discipline  through  which 

•-'*  Passenger    Cases,    7    How.    283,  Henderson  v.  Mayor,  92  U.  S.  259; 

especially  with  reference  to  §  2  of  Chy  Lung  v.  Freeman,  92  U.  S.  27.5. 
the  act  of  Massachusetts  before  the         --  Hannibal,  etc.,  R.  Co.  v.  Husen, 

court  in  the  case  of  Norris  v.  Boston.  95  U.  S.  465. 


102  PEACE  AND  SECURITY  FROM  CRIME.  §  103 

this  end  is  sought  to  be  aeoomplished.  is  not  part  of  the  police 
power  of  tlie  state;  but  is  ])artly  an  incident  to  the  power  of 
criminal  punishment  (which  belongs  to  the  judicial  power), 
and  partly  rests  upon  the  rights  and  powers  inseparable  from 
the  government  of  any  institution  having  the  special  custody 
of  persons.  This  allows  the  regulation  of  the  routine  of  the 
life  dowm  to  the  smallest  details,  and  of  course  also  the  prohi- 
bition of  the  use  of  liquor,  tobacco,  etc. 

Measures  which  in  their  effect  reach  beyond  the  term  of 
imprisonment  arc  often  specially  authorised  by  statute.  This 
is  especially  ti'ue  of  processes  serving  the  purpose  of  identifi- 
cation: the  taking  of  measurements  and  photographs,  copies 
of  which  are  distributed  among  other  penal  institutions  and 
police  offices.  Since  these  are  appropriate  means  of  making 
escape  more  diffieull,  and  of  facilitating  Ihc  recapture  of  an 
escaped  convict,  they  may  perhaps  be  regarded  as  implied  in 
the  ordinary  powers  of  management;  in  a  considerable  num- 
ber of  states  they  have,  however,  in  recent  years,  been  made 
the  subject  of  special  statutory  enactment.-^' 

There  is  no  warrant  for  adopting  compulsory  measures  of 
this  kind  with  regard  to  persons  who  have  not  been  adjudged 
guilty  of  an\-  offense,  except  perhaps  where  authorised  by 
statute  as  a  means  of  securing  the  presence  of  the  accused  at 
the  trial.  In  liidijina  a  person  arrested  was  photographed  by 
the  sheriff  against  his  wish,  .iiid  his  photograph  sent  to  a 
nnttibcr  of  j)()lice  olKices.  An  action  upon  tlu^  sherift"s  bond 
was  dismissed,  the  court  saying:  "It  would  seem,  it'  in  the 
discretion  of  the  sherilV  he  should  deem  it  necessary  to  the  safe 
keeping  (if  ;i  prisoner,  or  1o  pfcvmt  his  escape,  or  to  enabli' 
him  the  more  readily  to  I'clakc  the  piismicr  il'  he  should  escajie, 
to  take  his  jihotograph.  and  a  incasurcmcnt  of  his  hcighl,  and 
ascertain  his  weiglit,  name,  dc..  iis  was  done  in  Ihis  case,  he 
e»)nld  lawfully  do  so."  .Ns  I'oi-  scndiui;-  Ihc  |iholoL:rn|>h  ahi'oad 
the  court  held  thai  if  this  constituted  ;i  lihel.  the  sheritV.  in 
conuiiitting  it,  h;i(l  not  ncted  l»y  virtue  of  his  oflicc.  and  could 
thi-rcfore   not    he   held    liable   upon    his  bond.-' 

It   is  certainly  better  to  deny  the  powei-  of  photographing  in 

J«8o   New   York,   !«!)«,  Californi!!.  riui.r,    IHI    Ind.   HiMt,   r>7    N.    E.   541. 

lf!97,  VirKiniii,   1M08,  Sec;  hco  Muhh.  Autlmrity  granted   by  statute  as  to 

R('v.  TjnwH,  rh.  'J'jri,  S9   18-21.  jJcrHoiiH    hold    on    clmr^c    of    fnlony. 

sTHtiitc    I'X    rci.    TirunH    v.    Clans-  low.-i  li.-iwH.  HKI12,  cii.  :?Hr). 


<  104  CONTROL  OF  CONVICTED   LRIMIXALS.  Kj.j 


b 


such  cases,  except  under  authority  of  a  statute  restricting  it 
to  its  proper  purpose  and  providing:-  safeguards  against  its 
abuse.  Where  a  suspected  criminal  is  arrested  but  must  bf 
discharged  for  lack  of  evidence,  therc^  seems  to  I)h  no  consti- 
tutional warrant  for  compulsory  photographing  or  measure- 
ment, desirable  as  some  such  measure  of  identification  may  be 
for  practical  purposes. 

§  104.  Conditional  pardon.  — It  is  recognised  that  the  i)ar- 
doning  power  may  be  exercised  by  annexing  conditions  to  the 
pardon.2^  Some  times  the  conditional  pardon  is  expressly 
provided  for  in  the  constitution-'*  or  by  statute.-'"  The 
condition  must  not  be  impossible,  criminal  or  illegal;  but  there 
can  be  no  valid  objection  to  the  requirement  that  the  pardoned 
offender  shall  remain  within  a  certain  locality,  report  to  the 
police,  not  engage  in  certain  pursuits,  etc. ;  in  other  words, 
the  power  of  conditional  pardon  may  be  used  to  establish  a 
very  effective  supervision,  to  continue  until  the  expiration  of 
the  original  term  of  imprisonment.  It  is  also  held  that  the 
condition  may  be  that  the  offender  shall  leave  the  country  or 
the  state  ;3^  even,  it  seems  where  banishment  as  a  punishment 
is  forbidden  [^^  on  principle  the  legality  of  this  condition  may 
well  be  doubted ;  for  what  right  has  a  state  to  force  an  offender 
upon  another  community? 

§  105.  Indeterminate  sentence  laws  and  parole.— Akin  to 
the  conditional  pardon  is  the  parole  (under  English  laws  ticket 
of  leave)  under  which  a  convict  is  provisionally  discharged 
from  prison,  and  which  is  authorised  in  a  rapidly  increasing 
number  of  states,  generally  in  connection  with  a  system  of  sen- 
tences of  imprisonment  of  indeterminate  duration  within  a 
minimum  and  maximum  term  fixed  by  law.  Under  regulations 
to  be  established  by  the  prison  authorities,  or  by  a  state  board 
of  pardon,  the  convict  may  be  allowed  to  depart  from  the  pen- 
itentiary on  condition  of  good  behavior,  and  liable  to  be  re- 
turned to  prison  without  a  new  conviction  until  his  term  expires 

^8  Ex  parte  Wells,  18  How.  307.  4   Brewst.   3:26,    1869;    State   v.   Ad- 

■-•9  State    V.    Barnes,    32    S.    C.    14,  dington,  2  Bail.  L.  516,  23  Am.  Dec. 

Constitution  S.  C.  IV,  §  11.  150,  1831 ;   ex  parte  Marks,  64  Cal. 

"0  Fuller  v.  State,  122  Ala.  32,  45  29,  1883. 
L.  K.  A.  502.  ■■*-  Ex  parte  HaAvkins,  61  Ark.  321, 

31  People  V.  Potter,  1  Park  Cr.  R.  30  L.  R.  A.  736. 
47;     Commonwealth     v.     Haggerty, 


104  PEACE  AND  SECURITY  FEOM  CRIME.  §  106 

or  until  he  is  sooner  tinally  discharged.  The  legality  of  these 
laws  has  been  contested  partly  upon  the  ground  that  they 
are  encroachments  upon  the  executive  pardoning  power,  partly 
upon  the  ground  that  they  vest  judicial  powers  in  the  prison 
authorities,  the  punishment  depending  upon  their  discretion 
instead  of  upon  the  sentence  of  the  court.  Upon  one  or  both 
of  these  grounds  they  have  been  held  to  be  unconstitutional 
in  several  states.^^  In  other  states,  however,  these  acts  have 
been  sustained,  though  in  some  cases  by  a  divided  court.'*^ 
The  Illinois  act  seeks  to  avoid  the  constitutional  difficulties 
l)y  nuiking  the  discharge  of  the  prisoner  dependent  upon  an 
order  of  the  court  and  the  approval  of  the  governor.  The 
Supreme  Court  of  ^lassachusetts  sustains  the  act  upon  the 
theory  that  its  effect  is  to  inflict  the  maximum  of  punishment 
for  the  offense  subject  to  reduction. •^'''  The  same  view  has  been 
taken  in  Illinois.-"'  Tliis  view,  however,  encounters  some  diffi- 
culty where  the  law  provides  that  after  a  breach  of  the  parole 
the  convict  is  to  serve  out  the  whole  of  the  unexpired  maximum 
term  of  imprisonment,  not  counting  the  time  he  was  out  on 
parole.  If  during  this  time  the  convict  is  still  in  legal  custody 
—  and  that  is  his  status  umler  the  law  of  Illinois — the  effect  of 
this  pi-()visi()ii  is  to  deprive  him  of  his  lilx'tMy  t'oi*  a  fixed  max- 
imum liTiii  plus  the  parole  time.  To  i-cmovc  this  tlifliculty 
til"'  piTSDii  (111  parole  must  be  licit!  tt»  he  iVee  subject  to  condi- 
tions !»>•  Ilic  l)i'c;ich  of  wliich  he  foi-t'cils  his  freedom  and  to 
which  he  voluntarily  submits  i)y  accepting  the  parole.  Such  a 
status  of  liberty  is  certainly  most  anomalous:  Imt  it  seems  to 
he  san<-tii)ned  by  the  establisiied  practice  and  constitutional 
reeognit inn   of  conditional    pardons.''" 

15  106.     Question  of  delegation  of  judicial  powers.  — Where 

dischii?';^!'    ;iiiil    recommit  iiieiil    (lej)ciid    upon    the    orth'r   of   the 

•■I'l  I'coplc    V.    ('nmniiii^H,    SS    Miih.  Ki?  .M:iss.   lit,    If)  X.   I].   1;  (Jcorjjo  v. 

•JU),  14  L.  H.  A.  !!«.'■),  ISIH  ;  Statr  ex  iVopic.    1(!7    III.   ■t47,   47    .\.    K.   741; 

rcl.    FliHhop    v.    Stnto    M(.anl    ..f    Cor-  .\iillcr  v.  St:ilc,    M'.»    In. I.  ()()7,  49  N. 

rr<ti..iiH,   ir.  rtah  47S.  ."jj   I'ar.   Ki'.iO;  K.  K'.tl. 

hv    C!()n<lili(»ii»l     I)iK<'liiirjj«'    nC    ('mi-  ■'■'■  .Miii|iiiy    v.    ( 'oiiiMinriwc'iil  h,     17'J 

sU'tH,   7.T   V(.  414.   r,(\   L.    ]{.    A.   (i.-).s.  MaHH.  li()4,  4.T  T>.  K.  A.   l.".l. 
In   .Mi<'lii(jaii  a  conHtifiif ional  :iiiit'iiil-  •'"  Pcoplfi  ex  rcl.   Hradlcy  v.  SuptT- 

iiirnf   Mani'tiiiiiiiij4  Uic  liyislatida  waH  iMlfiiilciit    I  IlinoiH  State  Hcfonnatory, 

a<lopt.'<l  in  1902.  148  III.    li:i.  .'iC.  N.  E.  76. 

•I*  Stat*'  V.  PctnrH,  4.1  Olii..  St.  (iliJI,  ''t  Artliiir  v.  Crai^,  4H  la.  264. 

1  V    K    ''I  :  ''ommonwcalth  v.  Rrnwn, 


§  107  CONTROL  OF  CONVICTED  CRIMINALS.  105 

prison  authorities,  the  question  arises  whether  it  is  consistent 
with  constitutional  principles  to  leave  the  admeasurement  of 
punishment  within  a  minimum  and  a  maximum  term  to  admin- 
istrative officers.  That  the  judiciary  cannot  claim  admeasure- 
ment of  penalties  as  a  matter  of  constitutional  rij^ht,  appears 
from  the  fact  that  there  are  some  offenses  in  which  no  discretion 
as  to  penalty  exists,^^  others  in  which  discretion  is  very  much 
{•ii'ciiiuscribed.  It  is  also  coming  to.  be  recognised  more  mikI 
more  that  an  approximation  to  perfect  justice  to  the  criminal 
can  be  better  accomplished  by  watching  the  conduct  of  th(! 
criminal  after  conviction,  than  by  the  traditional  methods  of 
due  process  of  law,  which,  it  must  be  confessed,  have  resulted 
in  a  very  crude  realisation  of  the  ideal  demands  of  justice  in 
the  matter  of  punishment.  It  would  therefore  be  better  to 
regard  the  scope  of  the  judicial  power  which  under  the  con- 
stitution may  not  be  committed  to  the  other  departments  of 
the  government,  as  restricted  to  the  determination  of  the 
question  of  guilt,  and  to  hold  the  matter  of  admeasurement  of 
punishment  to  be  within  the  legitimate  province  of  legislation 
and  administration. 

The  discretion  of  prison  authorities  should  be  controlled  by 
legislation.  The  law  should  not  only  fix  methods  of  punish- 
ment, but  also  determine  its  maximum.  Indefinite  terms  of 
imprisonment  can  be  justified  only  where  the  offense  is  suffi- 
ciently grave  to  deserve  a  life  term,  or  where  the  offender  is 
treated  as  a  person  deficient  in  moral  responsibility,  who  is  to 
be  guarded  rather  than  punished.  Moreover,  considering  that 
the  parole  system  creates  a  new  status  of  diminished  liberty, 
the  precise  character  of  that  status  should  be  determined  by 
law,  and  to  leave  the  conditions  under  which  the  prisoner  is 
out  on  parole  to  be  fixed  by  the  prison  authorities,  is  a  delega- 
tion of  legislative  power  hardly  sustainable  on  principk\ 

§  107.  Parole  conditions  a  form  of  police  supervision.— The 
conditions  of  the  parole,  assuming  them  to  be  framed  by  com- 
petent authority,  may  be  made  to  constitute  a  very  effective 
police  supervision  over  the  convict.  The  practice  is  to  put  them 
in  the  form  of  rules  and  regulations  accepted  by  the  prisoner 
and  termed  a  parole  agreement,  but  their  binding  character 
certainly  does  not  rest  upon  contractual  principles. 

38  Murder  in  the  first  degree— death  penalty,  N.  Y.  Penal  Code,  §186. 


106  PEACE  AND  SECURITY  FROM  CRIME.  §  lOg 

The  main  conditions  of  the  j)arole  are:  consent  of  the  Board 
of  Managers  to  a  change  of  employment  or  residence ;  monthly 
reports  by  mail,  abstention  from  intoxicating  liquors  and  from 
frequenting  saloons.-'^  The  Indiana  State  Reformatory  re- 
(juires  in  the  monthly  report  a  statement,  among  other  things, 
of  the  earnings  and  expenditures  of  the  paroled,  whether  he  at- 
tends church,  Avhether  he  uses  tobacco,  what  books  he  has  read, 
wliether  he  has  attended  public  meetings,  dances,  picnics,  and 
if  so.  when  and  Avhere.  These  (luestions  are  ]iut  to  juvenile 
offenders. 

A  breach  <>['  aii\'  <>t'  llie  conditions  subjects  the  offender  to 
recommitment  without  judicial  proceedings,  if  the  liability  to 
summary  retaking  is  one  of  the  conditions  of  his  (lualitied 
release."*"  This  is  constitutional  since  he  remains  technically 
a  prisoner."*^  Supervision  and  recommitment  ai-e  not  acts  of 
tlie  police  power,  but  i)nit  of  the  punishment  inflicted  for 
crime. 

ij  108.  Suspension  of  sentence  and  probation.  —In  a  number 
of  states  courts  have  exercised  the  power,  without  distinct 
warrant  of  law,  of  suspending  sentence  after  conviction  for 
an  iiidelinile  time,  with  the  undei-staiiding  thai,  if  the  offtMider 
behavt's  well,  the  sentence  will  nevei-  be  pioiiounci'd.  The 
I)ractice  seems  also  to  have  existed  in  England,'-  and  to  have 
been  well  established  ;is  :i  powci-  (if  i('sj)ite  or  reprieve  in  i-aj)- 
ital  cases. ■*•'  I'factically  tliis  ainoimls  to  an  exercise  ot"  a  con- 
ditional |)ardoning  ]>ower.  and  iiia>  he  used  fctr  the  |)urpose 
of  conti'olling  the  conduet  of  an  offcndei-  while  leaving  him 
at  large.  The  pi'a<'tiee  was  in  some  cases  noticed  by  the  courts 
but  passed  unchalleiiged."  In  Massacluisetts  (where  it  had 
been  recognised  hy  statute),  in  New  'I'oi'U  {overruling  the 
lower  courts,  whose  decisions  led  tlie  legislature  to  legalise 
tln'  practice),  and  .\c\v  Jersey,  tlh'  pnwci-  to  suspend  sentence 
has  been  sustained  :'•'  In  .Michit^an.  I  lliufiis  .md  I  lie  federal  courts 

'  .■^.f     HiiloH    iirnl     I'iir.ilc     ,\^rr iJ  •_•   H;il,.   |'.  ( '.,  ,li.  r,s.  |,.    Hl'. 

mRiilH,     AiiK'ririiii      Hiir      Axsdi-i.-itiiiii  ^''  liislinp      Now      ('rim.      I'lor.,      I, 

K«'|H.rt,  1H9H,  p.  477-484.  §  l'_'S)5). 

^nRtiito      ex      rol.      OTonnor      v.  ••  Wcii\ii-  v.  I'l-ojilc.  X\   .Midi.  129(). 

Wclfor.   r>:t    Nfinn.    l.l.'i,    lit    I-.    If.   A.  <•'•  ('<)Mitiinii\\<:illli  v.  Dowfiiciiii,  Itf) 

7H3.  MiiHH.    l.'S.'t;    l'cn|.lc   V.   <'(iur(    of   Sch- 

«>  Kill  lor    V.    Hlalr.     IJJ    Al«.    :VJ,  HidiiH,  1  II    \.  Y.  L'88;  State  V.  Addy, 

4.'    I,,    n.    A.   502;    K.-imrdy'H   Ciihc,  14  Vmnni    11  :t. 
\:ir,  Mri««    t" 


^;  lU(j  CONTROL  OF  CONVICTED   CRIMINALS.  IQJ 

its  legality  has  been  denied. ^"'  Indiana  seems  to  regard  the 
power  as  inconsistent  with  the  governor's  eonstitntional  pre- 
rogative of  pardon,^'  a  vieAV  Avhich  Avill  hardly  find  favor  else- 
where. The  tendency  is  to  sanction  the  jjracticf  by  statute,  (the 
first  step  to  that  effect  having  been  taken  in  Massachusetts-'**), 
applying  it  to  first  offenders  who  are  to  be  saved  from  the  con- 
tamination of  prison  life.^"  Similtir  legislation  exists  in  p]ng- 
land,^"  France,-^^  Belgium,''^^  some  other  European  states,  and 
a  number  of  English  colonies.  The  system  of  France  and  Px-I- 
gium  differs  from  that  of  England  and  America  in  that  under 
the  former  the  conditional  liberty  is  forfeited  only  by  the  com- 
mission of  another  crime  of  which  the  offender  is  convicted, 
while  under  the  English  and  American  laws  the  enforcement 
of  the  sentence  is  at  any  time  Avithin  the  power  of  the  court, 
which  may  exercise  it  when  satisfied  of  the  misconduct  of  the 
offender. 

§  109.  Security  of  good  behavior.  — While  indefinite  suspen- 
sion of  sentence  is  of  doubtful  validity  without  statutory  sanc- 
tion, it  is  a  principle  of  the  common  law  that  the  court  may 
require  as  part  of  the  sentence  in  cases  of  misdemeanor  that 
the  defendant  give  bonds  to  keep  the  peace  and  be  of  good 
behavior.^ 3  In  New  York  this  authority  is  confirmed  by 
statute.=5-* 

§  110.  Disabilities  of  ex-convicts.  — Where  the  right  to  pur- 
sue a  calling  may  be  restricted  in  the  public  interest,  persons 
having  been  convicted  of  a  crime  may  be  excluded  l)y  law 
from  such  pursuit.  Thus  liquor  licenses  may  be  refused  to 
ex-convicts.        In   New   York   persons   convicted    of   infamous 

■4"  People   V.   Browu,    54    Mkli    15;  "'i  Lui  Bereiiger,  Murcli  26,  1891. 

People  V.  Allen,  155  111.  61,  39  N.  E.         52  May  31,  1888. 
568 ;   People  ex  rel.  Boenert  v.  Bar-         ••^-  Bishop  Cr.  T^.,  I.,  See.  945. 
reft.  67  N.   E.  23;   United  States  v.  r.4  2  R.   St.   737,   Sec.    1.      In   West 

Wilson,  46  Fed.  Rep.  748.  Virginia    the    ])raftice    is    recognised 

■»■  Butler  V.  State,  97  Ind.  373.  only   in   ease   of   gross   common    law 

■is  The  creation  of  a  probation  offi-  misdemeanor,    ])unishment    for    \\  hidi 

cer  for  the  county  of  Suffolk  by  act  is  not   prescribed   by  statute.     State 

of  1878.  "  V.  (iillilan   (W.  Va.).  51  AV.  Va.  278, 

*nSee  New  Jersey  Probation  Law  41  S.  E.  131,  57  L.  K.  A.  426;  so  in 

in   Report  Am.  Bar  Ass'n,   1900,  p.  Tennessee,  Estes  v.  State,  2  Humph. 

405.  496. 

50  Probation    of    First    Offenders' 
act,  1887,  50  &  51  Vict.  ch.  25. 


108  PEACE  AND  SECUKITY  FEOM  CRIME.  §  HQ 

crimes  are  excluded  from  the  practice  of  medicine.  Where  the 
restriction  operates  only  prospectively,  its  legality  is  undoubted, 
Avhether  regarded  as  a  police  regulation  or  as  part  of  the  crim- 
inal punishment ;  its  retroactive  operation  has  been  upheld  as 
an  exercise  of  the  police  power,  when  the  commission  of  the 
crime  showed  unfitness  of  the  calling.  This  point  will  be  dis- 
cussed in  another  connection."'^ 

Police  supervision  as  an  addition  to  the  regular  punishment 
for  crime,  seems  to  be  unknown  in  this  country,  but  is  recog- 
nised in  European  systems.  In  Germany  it  may  be  made  part 
of  the  sentence  in  a  imniber  of  offenses  specified  by  statute.^*^ 
Ill  France  where  it  was  introduced  in  1810,  it  was  abolished 
l>\-  an  act  of  1885,  which  substituted  a  prohibition  against  living 
in  designated  cities.  In  England  police  sujiervision  was  intro- 
duced by  the  Habitual  Otfen(l(M-s'  Act  1869,  and  is  now  regu- 
lated by  the  Prevention  of  Crimes  Act  1871.  The  court  upon 
the  second  conviction  of  an  olt'ender  is  authorised  to  add  to 
jiiiy  other  punishment  police  supervision  for  a  period  of  seven 
years:  the  person  nndcr  supervision  nnist  notify  the  police  of 
every  change  of  residence  and    n-poi't  himself  once  a  month. 

•'••'•  Hawker  \.  Xi'w  ^'oik,  17ii  V .  S.  ineiit,  reeeiviiijj  stolon  jjoods,  rohhtTv, 

1S9;  nt'v  §  .'345,  iiifiii.  niVciisos  ajjainst  gaino  laws,  arson,  in- 

*'"  Riot,    countcrfcitinfi,  indcniiii;^  ji'^T  to  property  with  dauger  to  life, 

immorality,     larceny     and  embezzle- 


CHAPTER   V. 

SAFETY  AND  HEALTH. 

§  111.  Growth  of  legislation.  — Tlie  protection  of  persons 
and  property  from  the  elements,  from  mechanical  forces  pressed 
into  human  service,  and  from  disease,  calls  in  many  respects 
for  the  combined  action  of  society,  and  the  urgent  need  of  this 
protection  makes  it  impossible  to  wait  for,  or  to  rely  entirely 
upon,  voluntary  combination.  A  large  amount  of  state  activity 
is  thus  called  into  play.  The  government  provides  for  the 
preservation  of  life,  health  and  property  by  preventive  and 
other  arrangements,  which  it  manages  in  a  proprietary  capacity 
and  places  at  the  service  of  the  public ;  but  in  addition  it  regu- 
lates, compels  and  restrains  private  action  for  the  like  purpose. 
A  vast  amount  of  police  legislation  is  justified  on  this  ground, 
and  the  state  is  readily  conceded  more  incisive  powers  than 
despotic  governments  would  have  dared  to  claim  in  former 
times.^ 

The  earlier  history  of  legislation  shows  comparatively  little 
care  for  the  prevention  of  accident  or  disease.  The  XII  Tables 
contain  what  appears  to  be  a  sanitary  regulation,  viz :  the  pro- 
hibition of  burials  in  the  city.  The  Roman  praetor  entertained 
popular  actions  for  damages  and  penalties  in  case  of  injury 
done  by  matter  carelessly  thrown  or  poured  from  houses  upon 
public  highways,  or  dangerously  placed  thereon  ;2  the  protec- 
tion was  thus  confined  strictly  to  public  places.  Apparently 
the  earliest  English  sanitary  legislation  is  an  act  regarding 
nuisances  in  towns  of  the  12th  Richard  II,  chapter  13;  com- 
missions of  sewers  were  first  created  by  8"  Henry  VI,  chapter  2; 
slaughtering  of  animals  in  walled  towns  was  prohibited  by  4 
Henry  VII,  chapter  3.  Building  regulations  were  establishe(l 
for  London  after  the  great  fire  of  l(i()B.  The  need  of  public 
measures  for  health  and  safety  would  naturally  first  be  felt 
in  cities,  and  it  was  through  autonomous  nmnicipal  legislation 

1  Thus   sanitary   measures   against     tolerated   for  centuries   the   grossest 
'  tlie  plague  have  been  resented  in  In-     forms    of    governmental    o]ipression 
dia  as  interfering  with  the  sanctity     and  spoliation, 
of  private  life  by  a  population  which         -  Dig.  9,  3. 

109 


IIQ  SAFETY  AND  HEALTH.  §  112 

that  (»u  the  continent  of  Europe  dnring  the  latter  part  of  the 
^liddle  Ages  this  branch  of  internal  police  was  first  called  into 
existence/'  Since  the  last  centnry  health  and  safety  have  be- 
come prominent  objects  of  the  so-called  social  legislation— that 
is  to  say.  legislation  for  the  benefit  of  wage  earners,  covering 
chiefly  the  following  subjects:  factories,  mines,  ships,  and 
tenements. 

^  112.  Principal  subjects  of  legislation.— The  legislation  in 
the  interest  of  safety  and  health  is  so  extensive  that  it  is  not 
possible  to  do  more  than  indicate  its  principal  subjects  and  the 
measures  adopted  for  dealing  Avith  them.  This  will  at  the  same 
time  serve  to  define  the  scope  of  these  two  interests  for  the 
purposes  of  the  police  power. 

SAFETY  LEGISLATION.    §§  113-lL'l. 

)i  113.  In  the  legislation  which  seeks  to  afford  protection 
from  injury  or  destruction  due  to  mechanical  causes,  the  fol- 
lowing principal  agencies  or  dangers  are  guarded  against: 
water,  lire,  explosion,  the  power  of  moving  bodies,  structural 
defects,  and  the  action  of  animals.  According  to  subjects 
regulated  <ir  dealt  with  we  may  distinguish:  lands  subject  to 
floods;  mines;  railroads;  ships  and  navigation;  buildings;  nia- 
ciiinery ;  explosive  and  combustible  materials  antl  poisons;  dan- 
gerf)us  animals  and  destructive  vermin  and  otluM"  pests. 

§114.  Protection  against  overflow  and  inundation.'— The 
action  (iT  ilic  slatr  is  chicliy  propi-jclary,  ])y  iin])r()vements  of 
till-  clianntls  ol'  i-ivi-i's,  the  ei'cclion  and  maintenance  of  dikes 
and  levees,  and  the  drainage  of  snrl'ace  waters. •'•  TTnder  early 
legislation  of  Louisiami,  the  duty  to  erect  end)ankments  was 
laid  npon  \]\>-  ii|>aiMan  proprietor  ;  in  other  states  such  an  obli- 
gation does  not  exisl^  and  probably  eaiinol,  be  const  it  ut  ionally 
imposed,  nnder  the  |)rineiple  ol'  e(pialil  \- ;''  but  w  liei'e  a  iiiniiher 
of  pieces  of  lan'l  i'orniinv'  a  lari^e  tract  are  similarly  e\|iose(l, 
an  owner  may  be  conipelled  to  join  with  others  in  cohiukiii 
measures  <d'  |)ro1eetion.'  and  there  is  authority  for  holding  that 
the    riparian    proprietor   may    he    I'orbidden    to    deal    with    his 

'(.icrko    (»cii((BMcnHcliiiftHrr'clit,    II,  S.    l!(5!»;    Eldridf^e    v.    Trczev;iiit.    Kid 

T^J'.  I'.  S.  -I.'-):.'. 

♦  H«'f  gt  <*»I«-«JM».  "  S.'c  8  .M)!t,  inlni. 

6  An  to  riimrinn  riRlitH,  HOC  88  4(i:{-  ■  S.-c    88M1,    t-lL',    iiili.!, '  (..tiipul- 

40n,   infni;   (Jri-fii    v.   Swifl.    17   <'ji|.  Hcry  jdiiil    iMi|>rnvrMi('ntH. 
-?.r,;  f:;i,-,.M  v    i-„iie(l  HtulcH,  lOH  IJ. 


§  115  SAFETY  LEGISLATION.  HI 

land  in  such  a  manner  as  to  weaken  the  natural  protection 
afforded  by  it  against  the  inroads  of  the  water.**  Under  the 
law  of  necessity,  without  statutory  authority,  all  able-l)odie(l 
persons  may  be  required  to  assist  in  Avardiiig'  off  a  present  and 
immediate  danger  of  inundation." 

§  115.  Mines.i'^— Legislation  for  the  safety  of  miners  exists 
in  all  states  in  which  mining  operations  are  carried  on.  For  a 
recent  revision  and  codification  of  the  laws  regarding  bitumin- 
ous coal  mines  see  Illinois  Act  of  April,  1899  ;  regarding  anthra- 
cite coal  mines,  the  act  of  Pennsylvania  in  Brightly  and  Pur- 
don's  Digest,  1895,  p.  1342.  The  provisions  relate  to  maps  and 
surveys,  the  construction  of  shafts,  the  observance  of  proper 
partitions,  the  operation  of  hoisting-  engines  and  other  machin- 
ery, the  storage  and  use  of  explosives,  ventilation  and  lighting, 
and  signal  codes.  The  state  exercises  supervision  over  mines 
through  inspectors,  and  requires  certificates  of  competency 
granted  upon  examination  of  those  employed  as  managers  or 
foremen,  hoisting'  engineers,  and  mine  examiners,  at  the  same 
time  frequently  compelling  such  employment.^  ^  For  question 
arising  as  to  statutory  liability  in  case  of  such  compulsory  em- 
ployment, see  §  624,  infra. 

§  116.  Railroads.^  2_The  police  power  is  exercised  by  statu- 
tory legislation  and  by  municipal  ordinances  in  the  interest  of 
the  public  at  large  using  highways  at  railroad  crossings,  of  pas- 
sengers, of  railroad  employees,  and  of  the  owners  of  property 
liable  to  be  injured  or  destroyed  by  the  operation  of  railroad 
trains.  Regulations,  restraints,  and  requirements  relate  to  the 
following  matters :  the  rate  of  speed  of  trains  in  cities ;  warning 
sign  boards,  gates,  and  flagmen  at  crossings ;  grade  elevation 
or  depression ;^''^  switches,  brakes,  couplers,  signals;  the  use 
of  stoves  in  cars;  fences  and  cattle  guards;  employment  of 
sufficient  numbers  of  men  and  of  men  properly  qualified,  and 
testing  such  qualification  by  examination;^^  provisions  against 
overwork  of  train  operators ;  supervision,  sometimes  at  the 
expense  of  the  railroad  company ;  strict  responsibility  for  in- 

8  Commw.  V.  Tewksbury,   1 1    Mete.  i*  South  Covington  &c.  Street  Car 

55,  §  409,  infra.  Co.  v.  Berry,  93  Ky.  43,  15  L.  R.  A. 

sPenriee  v.  Wallis,   37   Miss.    172.  6U4;    State   v.   Inhabitants  of  Tron- 

10  See  §  638.  ton,   53   N.   .L   L.   132.    11   L.   R.   A. 

11  Illinois  Act,  §§7,  8,  16,  17,   18.  410;    Smith   v.   Alabama,   124   U.   S. 
1-'  See  §§  622,  623,  628-634,  637.  465. 

13  §  631,  infra. 


11-2  SAFETY  AND  HEALTH.  §  117 

juries  to  persons  or  property.  Constitutional  questions  arising 
with  retrard  to  some  of  these  re(iuirements  will  be  discussed 
in  their  proper  places;  it  is  sufficient  here  to  say  that  the 
amplest  exercise  of  the  police  power  is  sustained  by  the  courts 
in  this  field  of  lecrislation. 

§  117.  Ships  and  navigation.^'"  — The  great  bulk  of  legislation 
in  this  matter  is  federal,  enacted  under  the  constitutional 
power  of  the  United  States  over  commerce.  But  the  regulation 
of  port  pilotage  is  left  to  the  states/*^  and  state  laws  contain 
other  provisions  regarding  the  safety  of  navigation  within 
their  limit.^'  Local  municipal  authority  also  frequently  ex- 
tends to  the  enactment  of  harbor  regulations.^*^  As  regards 
federal  legislation,  the  establishment  and  maintenance  of  light- 
houses and  life  saving  stations  belongs  to  the  proprietary  })()w- 
ers  of  the  government;  th(>  folloAving  provisions  fall  within 
the  province  of  the  i)olice  power:  laws  for  the  j^revention  of 
collisions  at  sea,  in  harbors,  rivers,  and  inland  waters,  and  on 
the  great  lakes,  by  prescribing  lights,  fog  signals,  and  sailing 
and  steering  rules ;^'^  relating  to  the  transportation  of  nitro- 
glycerine,^"  gunpowder,-'  and  other  infiammable  or  dangerous 
materials  ;22  steam  boilers  and  their  inspection  ;23  licensing  of 
captains,  chief  mates,  engineers,  and  steamer  pilots;-"*  safe- 
guards for  the  prevention  and  extinguishment  of  fire,  and  for 
the  saving  of  lives  in  (»mergencies.-"'  Many  of  these  safeguards 
are  also  n'<inired  of  foi-eign  vessels  carrying  passengers  from 
ports  of  the  I'niti'd  States  to  other  places  and  countries,-"  sucli 
vessels  being  cleaily  witliin  the  j)olice  powei-  of  the  United 
States,  while  they  are  in  an  American  i)ort  engaged  in  taking 
I)as.sengers. 

«»  8c«"  fi  fi25.  21  U.  S.  Kcv.  Stat.,  §  4422. 

•T.  H.  H.-v.  Stat.  42:\r,,  4444.  2'- IT.   S.   Rev.   St:it..   §§4288,  4472- 

"S«.o  1    N.  Y,  Kfv.  Stut.,  p.  68.3.  447(5. 

I"  Illino'iH  City  Act  V,  §  1,  Noh.  r.\,  '^^  U.  S.  Rev.  Stat.,  §§  4428-4438. 

M,   3.'),    .IS,    .3»;    ChiraKo   Rev.   C.mIc,  ^t  IT.   S.    Rev.   Stat.,    §§  44:M)-4442  ; 

1S1»7,      Title      Tfart.i.rH;       r,I(.ii.<'st.r  I'swific    Mail    S.    S.    (Vi.    v.    .FolifTe,    2 

VvTry  Cn.  V.  I'oniiHylvuuia,   111  \^.  S.  Wall.    450;    Si(raif,Mie    v.    TlidiiipHou, 

IPfl.  lis  IT.  S.  90. 

'Oil.  H.   Rev.   Stat.,   85  4233,  4412,  an  XT.   S.  Rev.   Stat.,   §5  4471,  4477, 

Act    Aug.    m,    iSltO,    I    Siippl.    7S1;  417S,   4479,   44S2,   44S4,   44HK. 

Art    Fehy.   H,    lsj».',    II    Suppl.    :i7(t;  -".A.!    Aiin.    7,   1882,    I    Suppl.,    p. 

Aft.  Fehy,  Ifl,  iSft.".,  II  Siij.pl.  3S1.  .IV.'!. 

9»U.  8.  Rev.  suit.,  4278-4280. 


5^  llg  SAFETY  LEGISLATION.  Hy 

55 118.  Buildings  and  structures.— The  lefrislation  dealing: 
with  this  matter  is  generally  local  whether  enacted  by  state 
or  by  municipal  authority .2"  Provisions  relate  to  llic  mode  of 
construction  and  materials  used,  as  prescribed  by  elaborate 
building  regulations;  the  establishment  of  fire  limits,  prohib- 
iting Avithin  cities  or  designated  portions  thereof  the  erection 
of  frame  houses,  and  the.  repair  of  those  damaged  or  decayed 
to  more  than  a  specified  proportion  of  their  value  ;2**  the  limita- 
tion of  height  of  buildings ;  the  requirement,  in  case  of  hotels 
and  lodging  houses,  tenements,  office  buildings,  factories, 
theatres  and  public  halls,  of  precautions  and  arrangements 
against  fires  and  for  escape,  and  for  the  protection  of  stairs 
and  hatchways;  analogous  provisions  for  other  structures, 
such  as  stands  and  platforms,  or  the  scaffolding  of  buildings; 
even  the  limitation  of  the  height  of  billboards  to  six  feet  has 
been  upheld  as  a  proper  safety  measure  r^  provisions  for  build- 
ing permits  and  inspection  to  control  the  carrying  out  of  these 
laws ;  in  recent  times  the  control  of  the  qualification  of  archi- 
tects by  examination  and  certificate.^^"  In  dealing  with  actual 
fires  the  community  primarily  renders  service  and  assistance; 
but  under  the  pressure  of  extreme  necessity  the  police  power 
may  be  carried  to  extraordinary  lengths :  buildings  may  be  torn 
down  to  check  the  spread  of  a  conflagration,  and  persons  pres- 
ent may  be  required  to  render  services  in  obedience  to  the  in- 
structions of  proper  authorities.^^  In  the  interest  of  common 
safety,  owners  may  also  be  forbidden  to  set  fire  to  their  own 
buildings,  woods  or  prairies. ''^ 

§  119.  Dangerous  machinery,  inflammable  materials,  explo- 
sives, poisons,  etc.— A  great  many  police  regulations  fall  under 
these  heads,  covering  among  others  the  following  subjects: 
machinery  in  factories  (belting,  gearing,  shafting,  cleaning 
while  in  operation,  employment  of  children  upon  it)  ;  construc- 
tion and  inspection  of  boilers  and  elevators,  and  examination 
and  licensing  of  engineers;  testing  and  inspection  of  oils  and 
labelling  packages;  insulation  of  electric  wires,  placing  them 
underground,  etc. ;  sale  of  poisons  in  properly  labeled  packages ; 

27  See  Mass.  Kev.  Laws,  chap.  104.  -'o  Illmois  Act  June  3,  1897 

■^s  See  §  537,  infra.  •''■  See  §§  53-4,  614,  infra. 

^nEochester   v.   West,    164    X.    Y.  32  Illinois  Crim.  Code,  §§17,  18. 
510,  .58  N.  E.  673. 


114  SAFETY  AND  HEALTH.  §  120 

manufacture,  transportation  and  storage  of  gunpowder,  nitro- 
glyoerinc.  and  dynamite:  fire  works;  precautious  in  blasting. 

§120.  Dangerous  sports.  — The  common  provisions  against 
fast  riding  and  driving  fall  under  this  head,  and  laws  exist  in 
some  states  requiring  precautions  in  acrobatic  or  aeronautic 
exhibitions,  or  forbidding  certain  forms  of  dangerous  exhibi- 
tions altogether  ;^^  recent  legislation  requires  keepers  of  bath- 
ing establislmients  to  maintain  safety  liui^s  and  life  boats. 

;;  121.  Destructive  animals  and  vermin,  noxious  weeds,  and 
other  pests.  — The  ])t)iiee  j)ower  is  exercisetl  by  authorising  the 
sliooting  of  fierce  dogs  not  properly  guarded. ^^  The  statute 
books  of  recent  years  are  full  of  provisions  against  agencies 
destructive  of  t)u^  products  of  the  soil.  In  some  cases  it  is 
attempted  to  lay  upon  the  owner  of  land  a  duty  of  extermina- 
tion.•'•''  An  act  of  Illinois  of  1899  requires  the  State  Entomolo- 
gist to  inspect  tree  nurseries,  and  to  issue  certificates  of  sound- 
ness; if  stock  is  infected  the  owner  may  be  required  to  take 
measures,  and  may  be  forbidden  to  remove  any  stock,  and 
provision  is  made  for  treatment,  partly  at  the  expense  of  the 
owner,  i^artly  at  the  expense  of  the  state,  and  for  the  destruc- 
tion of  the  stock  which  cannot  be  saved. ^"^ 

SANITAIiY    LEGISLATION.   §§  ]i'2-133." 

.;  122.  There  is  a  large  amount  of  corporate  public  action  in 
the  interest  of  public  health  which  will  imt  he  discussed  in  this 
treatise:  tin-  maintenance  of  hospitals,  provision  of  j)ui('  water, 
estabjishmt'iil  of  |>arks.  sewer  syslcms  imd  drainage,  cleaning 
of  streets,  also  tin-  riiniishing  ol"  inrormation  and  advice  tend- 
ing to  reduce  disease  and  i)romott'  health.  The  police  power 
operates  on  persons;  land,  struelures  and  establishments;  ob- 
no.xious  things;  and  on  business,  ti-a<les,  employments  and  pro- 
fessions. 

j  123.  Persons— Immigration  and  quarantine.  •'^  Restraints 
are  pluced  upon  jicrsoiis  to  guard   aj^Miiist    the   iiit  roduel  ion  or 

»»  New  York  I'cnnI  ('o<lr«,  8  427,  ''"A  voiv  IHII  jkc.hiiiI  of  ArnoriiMii 

.14  ,s,.,.  J  4'Jl,  infrn,  Hjinittiry  legislation   will   lie   Ciniiid   in 

56  lllini.iH    Crim.    (Uu\p,    551  Jn.     II;  :i  rfcciit   work  \>y  Clmrlcs  V.  ('Ii:i|piii, 

New  York  Lawn.  1H7K,  eh.  4H ;  8(il.S.  Mimi(i|>;il   Saiiilati.in    of   tlic    United 

ivtn.  SlatcH.  i'ruvi.lfiic.',  I'.IOj, 

»«««•*•  al.<wi  Nfw  York  Aurir-ultiiral  :i»  See  §§446,  447. 


§  123  SANITARY  LEGISLATION.  1 1 5 

the  spread  of  contagious  or  iiifootions  disease.-*"  The  United 
States  formerly  left  it  altogether  to  the  states  to  take  measures 
of  protection  against  the  importation  of  disease  from  abroad, 
and  even  after  the  establishment  of  national  quarantine  regula- 
tions'*" their  enforcement  was  left  to  local  authorities.  The  act 
of  March  3,  1903,  excludes  from  immigration  persons  affected 
with  loathsome  or  dangerous  contagious  diseases,  and  subj(H;ts 
immigrants  to  medical  examination.-*^  An  act  of  February  15, 
1893,  gives  to  the  Secretary  of  the  Treasury  wide  discretionary 
power  to  prevent  the  introduction  of  disease,  by  inspection, 
disinfection,  and  isolation,  and  the  President  is  given  authority 
temporarily  to  suspend  immigration  altogether,-*-  but  (}uar- 
antine  is  still  chiefly  a  matter  of  local  legislation  and  adminis- 
tration. In  the  states  there  is  generally  an  ample  delegation 
of  power  to  administrative  boards  of  health,^"*  to  deal  with 
contagious  and  infectious  disease.  The  powers  exercised  1)y 
these  boards  are  large  and  frequently  not  specified  or  enu- 
merated by  statute ;  the  New  York  law  gives  them  ' '  control  of 
all  persons  and  things  arriving  from  infected  places  or  which 
from  any  cause  are  liable  to  communicate  contagion,"  and  re- 
quires especially  the  isolation  of  persons  and  things  infected 
or  exposed.^^  The  health  officer  of  the  port  of  New  York  is 
required  "in  the  presence  of  immediate  danger  of  which  he 
shall  be  the  judge,  to  take  the  responsibility  of  applying  such 
additional  measures  as  may  be  deemed  indispensable  for  the 
protection  of  the  public  health."^''  The  statutes  of  Illinois 
provide  that  the  State  Board  of  Health  "shall  have  charge  of 
all  matters  pertaining  to  quarantine,  and  shall  have  authority 
to  make  such  rules  and  regulations,  and  such  sanitary  investi- 
gations as  they  may  from  time  to  time  deem  necessary  for 
the  preservation  or  improvement  of  public  health  ;"^*^  cities 
are  simply  authorised  "to  appoint  a  board  of  health  and  pre- 
scribe its  powers  and  duties,"^"  while  town  boards  of  health 
"on  the  breaking  out  of  any  contagious  disease,  shall  have 
power  to  make  and  enforce  any  rules  and  regulations  tending 

39  Chapin,  p.  630-664.  »*  Public  Health  Law,  §  24. 

40  Under  act  of  April  29,  1878.  *&  Public  Health  Law,  §  101. 

41  32  Stat,  at  Large,  p.  1213.  4(;  Rev.     Stat.,     State     Board     of 

42  II  Suppl.  Rev.  Stat.,  p.  82.  Health,  §  2. 

43  Formerly   local,    now   also   state  47  City  act  V,  §  1,  No.  76. 
boards  with,  concurrent  or  supervis- 
ory powers. 

8 


116  SAFETY  AND  HEALTH.  §  124 

to  check  the  spreadino:  of  such  disease;"  to  shut  up  houses  or 
places  in  which  infected  persons  are,  and  remove  the  latter  to 
a  pest  house  within  the  limits  of  the  town.^^  Measures  directly 
affecting  the  person  in  his  bodily  liberty  or  integrity,  represent 
the  most  incisive  exercise  of  the  police  power.  Only  the 
emergency  of  present  danger  therefore  can  justify  quarantine, 
isolation  or  removal  to  hospital  and  compulsory  treatment,  and 
it  is  at  least  doubtful  whether  vaccination  can  be  made  com- 
pulsory apart  from  such  necessity,  certainly  not  under  a  mere 
general  delegation  of  authority  to  administrative  bodies;  but 
such  general  delegation  is  sufficient  to  cover  the  most  ample 
powers  in  case  of  an  emergency.'*^ 

^  124.  Marriage."'*^— Restrictions  upon  the  right  to  marry 
based  on  disease  may  rely  for  their  justification  upon  one  of 
two  grounds :  either  the  marriage  may  be  a  wrong  to  the  other 
party  by  exposing  him  or  her  to  the  risk  of  bodily  harm:  a 
l;iw  of  Micliigan^  which  makes  persons  affected  with  syphilis  or 
gonorrhoea  incapable  of  contracting  marriage,  and  the  con- 
tracting (if  such  marriage  a  felony,  is  of  this  character;  or 
till-  law  iii.iy  have  in  view  the  physical  well-being  of  future 
generations  by  preventing  marriages  the  oft'spring  of  which 
is  Habit'  to  be  tainted  l>y  hereditai'v  disease;  of  this  character 
is  a  hiw  of  Connecticut-  forbidding  epileptics,  imbeciles,  or 
feeble-minded  persons  to  marry,  where  the  woman  is  under 
forty-five  years  of  age.  This  age  limitation  clearly  indicates 
that  Ihr  jMirpo.se  of  the  act  is  to  prevent  the  transmission  of 
the  defect  to  offspring. 

Legishiti(»ii  loi-bidding  the  marriage  of  persons  alHicted  with 
diHcusc,  which  is  liable  to  hereditai-y  transmission,  should  be 
conceded,  as  a  matter  of  priiiciplc.  to  Ix'  within  the  police 
[)ow<'r  of  the  state;  for  the  health  of  imhoi'ii  ucnei-ations  is  a. 
matter  of  profound  coneei-ii  to  the  community  which  may 
justly  assume  the  guardianship  of  their  interests.  As  a  matter 
of  practical    legislation,   however,   restrictions   upon   the   right 

*»  Kc'v.    Stat.    TownHhip    OrKiinisn-  r>'»  Hoc  §  fiU?. 

tion,  XIV,  J  1,  1  Laws  IMH),  p.  247. 

«»  HnrriKon  v.  Mayor  of  Riiltimori>,  '^  Act  of  July    ttli,   180.'),  amciMlod 

1    (Jill.    (.M.I.)    -ZiH,    IHJ.'l;    State    v.  .Inly  Ofli.  IHirj ;  also  l.a\vn  of  .Miiiiie- 

Clty  of   Nnw   OrloanH,   27   La.   Ann.  Hota,    1901, -ch.    234,    and    Laws    of 

ri2l;    Tfavcrty    v.    |{aH»,    60    Me.    71,  KanHaH,  liM)3,  cb.  220, 
nnil  nt'o  gg  Mf!.  447. 


S  125  SANITARY  LEGISLATION.  117 

to  marry  resting  upon  scientific  theories  which  arc  not  abso- 
lutely clear  in  their  operation,  and  upon  facts  which  an-  iml 
easily  ascertainalble,  must  meet  with  ahnost  insuperable  dif'li- 
culties  of  enforcement.  Provisions  merely  penalising  iiiai-- 
riages  contracted  in  contravention  to  the  law  would  i-ciiiairi 
dead  letters,  while  to  vest  the  licensing  official  with  power  to 
refuse  marriage  licenses  to  api)li(';uits  whiiin  lie  knows  to  Ix' 
afflicted  with  inheritable  disease,-'  or  to  make  the.  i-ight  to 
marry  dependent  upon  a  physician's  certificate,  would  make 
the  enjoyment  of  an  essential  right  subject  to  the  exercise  of 
a  discretion  which  the  courts  might  well  deem  unreasonabU', 
because  uncontrollable  as  to  its  responsible  and  impartial  exe- 
cution. 

The  prohibition  of  marriages  between  uncle  and  niece,  or 
aunt  and  nephew,  or  between  first  cousins,  is  different  in 
nature,  since  it  creates  merely  a  relative  and  not  an  absolute 
impediment.  The  validity  of  the  prohibition  is  not  questioned 
in  the  states  in  which  it  exists,  although  it  rests  upon  a  theory 
which  is  not  supported  by  any  respectable  evidence.^ 

§  125.  Burials  and  cemeteries.'''— The  state  may  exercise  the 
fullest  control  over  the  disposition  of  dead  bodies  with  a  view 
to  protecting  the  public  health.  Under  the  laws  of  many  states 
permits  for  burial  and  for  transportation  of  corpses  may  be 
required.*'  The  practice  of  embalming  has  been  regulated  in 
recent  years  in  a  number  of  states  by  a  system  of  examination 
and  licensing.  The  control  of  cemeteries  is  only  a  further  ap- 
plication of  the  control  over  the  disposition  of  dead  bodies. 
This  control  is  often  delegated  to  local  authorities,  with  power 
to  prohibit,  remove  and  vacate.^  and  in  some  states  statutes 
directly  prohibit  the  establishment  of  new  burial  grounds  in 
built-up  portions  of  cities,  or  on  lands  draining  into  a  source 
of  water  supply."*  Dead  animals  do  not  at  once  cease  to  be 
property,  if  they  were  property  while  alive,  but  if  not  imme- 


3  Act  of  Minnesota,  §  2.  mits  serve  also  the  purpose  of  fiir- 

4  Huth,     The    Marriage    of    Near  iiisliinjj  information  as  to  deaths. 
Kin,  London,  1887.  ■  Illinois   City   Act,    Art.   V.   §    1. 

5  See  §  565.  No.  79;  Act  of  May  29,  1879,  Sec.  1. 
c  See  Mass.   Rev.   Laws,   ch.   78.   §  «  Pennsylvania   Acts   of   June   24, 

38,   also   rhapin,    p.    .oS.      Such   per-  1895,    April     20,     1899;     Tennessee 

March  28,  1S9U. 


llg  SAFETY  AND  HEALTH.  §  126 

diately  eared  for  and  disposed  of  by  the  owner,  they  may  be 
treated  as  nuisanees.'' 

§  126.  Dead  bodies.— The  legal  status  of  dead  human  bodies 
is  quitt*  anomalous.  They  have  ceased  to  be  persons  without 
becoming  a  detinite  species  of  ])roi)erty.  Relatives  have  a 
([ualitied  right  of  disposal  for  purposes  of  interment,  which 
cannot  be  regarded  as  property.  A  medical  institution  may 
acquire  a  body  for  dissection:  thereby  it  loses  its  peculiar  and 
distinctive  character  and  becomes  property  like  any  other  in- 
animate object.  But  this  transformation  into  property  requires 
legal  authority,  and  is  generally  regulated  by  statute.^*^ 

Aside  from  this  use,  the  nonnal  destination  of  the  body  after 
death  is  its  decent  disposal,  and  this  seems  to  be  altogether 
within  the  control  of  the  law,  saving  legitimate  religious  usages 
not  contrary  to  health  or  safety  or  the  accepted  standards  of 
morals.  The  police  power  may  control  the  manner  of  disposi- 
ti(»ii  of  dead  bodies  for  the  purpose  of  preventing  the  conceal- 
iiit-nt  of  ci-imes,  or  to  guard  against  the  comnumication  of 
disea.se,  or  to  prevent  the  desecration  of  remains,  or  to  prevent 
disorder  in  funeral  processions  oi-  exercises.  In  this  country 
reguhitions  exist  for  the  first  two  ])u?'poses;  so  the  time  iluring 
wliieb  bodies  may  remain  unl)uried  is  limited  in  a  number  of 
stati-s.  jiiid  burials  at  night  are  foi'biddi'u  in  Boston.^' 

Probably  the  courts  would  control  l(>gislativ(>  discretion  were 
it  exercised  in  ;in  unreasonable  manner.  Thus  a  legislative 
prohibition  of  ereiiuition  on  thr  izi-ound  that  it  is  contrary  to 
good  niofMls,  would  not  l»c  lil<ely  to  be  ae(]uiesced  in  l)y  the 
eoMl'fs;  ;ind  ;is  :i  nn'Jisiii'e  to  pi'cvent  the  conceMlnient  of  ei'iine, 
it  mit:ht  in-  held  to  [sn  lieyond  the  i'eason;il)le  i-e(|iiii'ements  of 
tluit   purpose. 

?  127.  Land,  structures  and  buildings.  — With  regard  to  land 
irrespective  of  liuildintzs  llir  p<»lice  powef  is  sparingly  ex(M'- 
cised.  In  some  states  loc;d  authorities  nuiy  re(|uii'e  low  lots  to 
he  filled  in  so  as  t<i  piTvrnl  walei-  I'roni  standing,  and  from 
Iteroining  a  iniisance  oi-  injurifuis  to  hrnll  li  :' -  more  important 
;ir<-  the  drainatre  statutes  luider  which   a    nia.j<u-ity  of  owners 

".><•«<  fi  .'ijij,  u./;,j.  II  cii.'iiiiii,  p.    Kio.   DiHintcniM'iil    of 

>"  H«>  i>.  ({.  IlliiKiiH  l{i'V.  Stat.,  'I'illc  ImhIjcs    iiunlc    ilc|)iMi(lciit    on    iiciiiiit  : 

.Me«li<'inc,  No.  1-4;   Mukh.  Kov.  Liiwh,  R<'  Woii>j  Vimjr  C^uy,  2  Fc-il.  Hep.  ()L'4. 

ch.    77;     N(rw     York     I'nblir     llr.ilHi  >a  ('hiipin.  p.    |<i(i. 

liAw,  if  'J  17,  'J17ii. 


§  128  SANITARY  LEGISLATION.  II9 

may  compel  a  minority  to  join  in  improvements  for  sanitary 
as  well  as  for  agricultural  purposes,  the  constitutional  aspect 
of  which  will  be  discussed  further  on.i-'  It  has  bc^cn  held  in 
Georgia  and  South  Carolina  that  in  urban  communities  the 
cultivation  of  rice  may  be  forbidden  for  sanitary  reasons,' •♦ 
and  in  some  southern  cities  the  upturning  of  the  soil  is  forbid- 
den in  the  summer  months.^^  Neglecting  land  and  allowing 
offal,  filth  or  noisome  substances  like  garbage  to  accumulate 
on  it,  and  the  pollution  of  water,  especially  such  as  is  used  for 
drinking,  may  be  treated  as  a  nuisance;^'*  where  water  is  im- 
pure, wells  may  be  required  to  be  filled  up.^'^ 

§  128.  Buildings  and  other  establishments.i8_The  following 
regulations  rest  upon  the  sanitary  power :  forbidding  more  than 
a  certain  proportion  of  a  lot  to  be  covered  by  buildings;  re- 
quiring light  and  air  shafts  and  other  means  of  ventilation ; 
requiring  water  supply,  plumbing  and  privy  arrangements; 
forbidding  the  use  of  cellars  for  dwelling  purposes,  and  the 
keeping  of  animals  in  houses.  These  requirements  are  of  par- 
ticular importance  with  regard  to  tenement  houses.  Their 
owners  may  be  required  to  keep  them  in  a  clean  condition  so 
far  as  necessary  for  the  public  health,  to  provide  garbage 
boxes,  to  whitewash  walls  and  ceilings  periodically,  etc.  Over- 
crowding of  tenements  may  be  prevented  by  requiring  a  mini- 
mum amount  of  air  space  to  each  occupant.  The  use  of  tene- 
ments for  unwholesome  occupations  may  be  prohibited,  and 
the  manufacture  of  clothing  in  living  rooms  has  especially 
been  made  the  subject  of  restrictive  legislation  in  the  interest 
of  the  public  at  large.^''  To  aid  in  the  enforcement  of  these 
provisions,  powers  of  inspection  are  given  to  proper  authoi*- 
ities,  and  in  New  York  the  names  of  the  owners  of  tenement 
houses  must  be  publicly  registered.^** 

§  129.     Foodstuffs,  etc.- ^  — The  sanitary  power  is  exercised 

IS  See  §  441,  442,  infra.  is  Chapin,    pp.    149-155,    822-831 ; 

1+  Green    v.    Savannah,    6     Ga.    1,  Mass.  Eev.  Laws,  ch.  104. 

1849;  Summerville  v.  Pressley,  33  S.  i^' Mass.   Eev.  Laws,   ch.    106,  Set-. 

(  .  56,  8  L.  E.  A.  854.  56-61. 

1"' Chapin,  p.  158.     .  '-o  See  the  Tenement  House  Act  of 

1"  Illinois  Criminal  Code,  Sec.  221.  New  York,  Laws,  1901,  ch.  334,  rejj- 

1'  State  V.  Schlemmer,  42  La.  Ann.  ulating  fully  the  whole  subject. 

1166,  10  L.  E.  A.  135.  21  See       also       §§274-286;       also 

Chapin,  pn.  306-424. 


120  SAI'ETY  AND  HEALTH.  §  130 

to  prevent  adulteration  with  noxious  ingredients,  while  in- 
nocuous adulterations  are  dealt  Avith  under  the  power  to  pre- 
vent fraud.  The  laws  punish  adulteration  of  food  or  liquor 
with  poisonous  or  injurious  substances,  the  sale  of  putrid  meat, 
or  of  milk  drawn  from  diseased  cows,  and  the  keeping  of  cows 
in  an  unhealthy  condition.  In  many  states  offices  have  been 
created  to  watch  over  the  purity  of  dairy  products  by  regula- 
tions regarding  dairies  and  the  inspection  of  cows  and  of  milk 
ottered  for  sale. 

Formerly  the  legislation  against  oleomargarine  claimed  to 
be  an  exercise  of  the  sanitary  power,  but  this  plea  haa  to  be 
abandoned  and  it  now  justifies  itself  as  a  means  of  preventing 
fraud.  For  the  more  effectual  control  of  the  food  supply, 
municipalities  are  given  power  over  nmrkets  and  slaughter- 
houses, which  is  exercised  by  regulation,  inspection  and  the 
rcipiirement  of  licenses,  sometimes— untler  express  authority 
—  by  the  establishment  of  municipal  markets  and  slaughter- 
houses and  the  prohibition  of  slaughtering  or  of  the  sale  of 
fri'sh  meat  outside  of  their  limits. 

Contagious  diseases  of  aninmls  are  dealt  with  under  state 
antbority,  by  destruction  of  infected  or  exposed  stock,—  by 
measures  of  (|uarantine  and  temporary  suspension  of  ti-affic 
(»r  importation,  and  by  imposing  upon  owners  the  duty  to  re- 
port cvci-y  cast'  of  such  disease.-"'  The  Fiiited  States  has  legis- 
lated for  the  prevention  and  suppression  of  animal  disease,  so 
far  as  inlei-slate  and  foi-eign  commerce  is  concerned.-"' 

^' 130.  Other  articles  of  consumption.— Regulations  similar 
to  llmse  alVccliiig  I'oudst  lilt's  exisi  witli  regai'd  1o  other  articles 
«»r  coiisnmpt ion,  so  especiiill\'  drugs  ;ind  nu'dieines,  and  candies 
and  confections.  Tennessee  has  gone  so  lar  as  to  prohibit  the 
Hale  of  cignrettes;^''  in  this  proliihition,  however,  as  in  that  of 

--8''-*,  infra.  :i;;aiiiHt   importation   of  disoascd  cat- 

••■■•III.     A«'t     of     April     J(l,     1SH7;  tic  and   iinwiioic.soinc   food;    ai.so  ad. 

.Mhw*.  Kcv,  LiiwH,  <li.  SKI,  8   II.  of     .March     :5.     ISiH,     I     Snppl.    0:{7, 

-••  T^  S.  Hi»v.  Ht.,  •J4!l.'l'J4«.t(i  rc^'ard  amended    li.>    ..,-1    of    M.ircli    •_',    189.'), 

in(j   ifnfiortiition   of  ciitllr-;    act    M.-iy  II    Siippl.    10;$,  for  inHpection  of  caf- 

'2V,    IM.Sl,    I    Hiippl.   4:iri,   cHtaldisliin^'  tic,     lio^;s,     carcnsHeH     and     products 

Biircnii    of    Animal    IndiiMtry    in    flie  thereof    wliicli    jire    llic    sulijeits    of 

I'epiirlment      of     Ajjrieullure;       \<'l  infrTslate  and  foroijjn  (•oimtiiT((!. 
AiiK.  :in.   IMJM),   I   Snppl.   7!M,   for  in  ■;■■•  Austin   v.   State,    lot    'I'cim.   .1«.1, 

ripfH'tinti    of    iinimalH    tl.e    meat     of  .00  L.  K.  A.  47b. 
whirh    in    intcnflH    for    export,    and 


§  131  SANITARY  LEGISLATION.  121 

the  sale  of  liquor,  other  than  purely  sanitary  considerations 
come  into  play.  In  Massachusetts  the  prohibition  of  the  use 
of  injurious  ingredients  is  extended  to  the  manufacture  of 
toys.2<^ 

The  trade  in  second  hand  articles,  especially  second  hand 
clothing,  may  also  be  subjected  to  sanitary  restrictions,  and  is 
not  uncommonly  left  to  municipal  regulation.^'^ 

§  131.  Employment.2^— The  first  impulse  to  mining  and  fac- 
tory regulation  was  given  by  the  wretched  sanitary  conditions 
under  which  mining  and  manufacturing  operations  were  car- 
ried on,  and  a  large  part  of  this  legislation  is  now  of  a  sanitary 
character.  As  far  as  requirements  for  the  arrangements  in 
mines  and  factories  are  concerned,  this  is  clear,  but  in  the  regu- 
lation of  conditions  of  employment,  especially  as  to  time  of 
labor,  there  may  be  considerable  doubt  whether  the  object  of 
legislation  is  sanitary  or  social  and  economic.  In  view  of  the 
very  ample  legislative  power  over  children,  the  restrictions 
upon  their  Avork  need  not  be  carefully  scrutinised  as  to  their 
character.  The  restrictions  upon  the  employment  of  women  in 
underground  or  night  work  are  generally  accepted  as  sanitary 
regulations,  or  regulations  in  the  interest  of  morals  and  de- 
cency! As  to  male  adults,  restrictions  upon  hours  of  labor  are 
infrequent;  an  11  hours'  maximum  day  for  operatives  in  cot- 
ton and  woolen  manufactories  in  Georgia  and  South  Carolina 
has  not  been  questioned  judicially ;  an  eight-hour  day  for  miners 
has  been  upheld  in  Utah,^^  and  for  Utah  also  by  the  Supreme 
Court  of  the  United  States,^^  but  declared  invalid  in  Colorado. •■*' 

§  132.  Qualifications  for  the  exercise  of  callings  affecting 
health.^^-— The  right  to  pursue  the  following  callings  is  regu- 
lated under  the  plea  of  protection  of  health :  medicine  and  sur- 
gery,  midwifery,   pharmacy,   dentistry,    veterinary   medicine; 

-<iRev.  Laws,  eh.  213,  §6.  ••>!  Re  Morgan,   26  Col.  415.  47    L. 

•--  State  V.  Taft,  118  N.  C.  1190,  32  R.  A.   52.     Tho   Ipfr'slatiou   thus  de- 

L.   R.   A.   122;    Rosenbaum   v.    New-  clared     unconstitutional     has     since 

bern,  118  N.  C.  83,  32  L.  R.  A.  123;  been  expressly  authorised  by  consti- 

Chapin,  p.  209.  tutional    amendment    adopted    Nov.. 

28  See  §§310-317,  infra.  1902. 

29  State  V.  Holdeu,  14  Utah  71,  -'^  See  also  §§152-154,  544,  545, 
96,  37  L.  R.  A.  103,  108.  646,  650. 

30  Holdeu  V.  Hardy,  169  U.  S,  366, 
1898. 


1-2-2  SAFETY  AND  HEALTH.  §  133 

under  recent  legislation  also  the  vocations  of  plumbers,  under- 
takers and  embalmers,  and  in  a  few  states  also  of  barbers. 

>;  133.  Practice  of  medicine.  — Thf  i-iuht  to  practice  as 
physician  or  surgeon  was  restricted  to  members  of  the  corpora- 
tion of  that  profession  by  statutes  of  Henry  VIII,  and  in  New 
York  admission  to  the  profession  was  regulated  by  colonial 
li*gislatii)n  as  early  as  1684.  At  present  there  are  no  states  in 
which  the  right  to  practice  is  not  regulated  by  statute. 

A  license  to  practice  medicine  is  granted  upon  evidence  of 
ipialihcation  according  to  requirements  Avhich  vary  in  different 
states,  the  following  being  the  usual  systems:  admission  upon 
presentation  of  a  diploma  from  a  reputable  medical  school  or 
college;  admission  upon  examination  by  official  boards  of  ex- 
aminers; and  a  combination  of  the  diploma  and  examination 
system  either  so  that  either  one  will  be  suificient,  or  so  that 
both  are  retpiired,  or  s(»  that  an  applicant  for  examination 
must  show  a  specitied  nuinbtn-  of  years'  study. •^•^ 

Generally  the  statutes  require  proof  of  qualification  only  of 
those  who  shall  in  lln-  future  desire  to  begin  the  i)ractice 
of  mctlieinc ;  tin-  \:\\v  may.  however,  apply  to  existing  practi- 
tioners tests  of  litness  to  continue  in  the  practice  of  their 
l)rofession,-"  and  it  has  been  held  that  where  a  license  fee  is 
imposed,  existing  practitioners  cannot  be  constitutionally  ex- 
empted from  it.''"'  On  the  other  hand,  the  law  may  accept  the 
i'aet  that  tin-  applie;mt  has  i)raetieed  ("or  a  numlier  of  years 
as  sufTieieiit  evidence  of  qualilieatiou,  and  in  lieu  of  either 
diphuna  (tr  examination.-'"  Exceptions  .ire  tVe(|uent l.\  made 
in  I'aviir  of  nicilic;il  jiract  it  ioiiers  i-esiding  in  other  states  and 
(•alh'd  in  I'or  i-onsiiltat  ion  it  tfcjilineiit   in  speei;il  eases. -'^ 

WliiTf  ji  license  is  i-c(|nin'il.  the  practice  ol'  medicine  without 
it  is  i'orbiddi-n  ;in(l  |Minishe<l.  :iii<l  it  becomes  inqioi-tiinl  to  deler- 
niinc  what  is  meant  by  pracliir  <•!'  nudicine.  The  (|uestioii  nmy 
ari.sc  in  c«>nneclion  with  tlie  a<lniinistrMlion  ol"  (joincstic  i-eme- 
tlu'H,  emergency  services,  the  reeonnneiid.-it  ion  ol'  medicines  kept 

»»  A    full    HvnopHiH   >>i'    the    IcKiHlji-  •'••'•  Sinio  v.  IVimoycr,  (jr)  N.  II.   1  i;{, 

tion  of  tho  flifTiTftU   HtHtPfi  \h  given  5  L.  R.  A.  TO'.i. 

ifi    III*'    IJcvicw   (if    I,«'>fiKljilii)ii,    l!tO|,  •>'•  \VilIi:iiiis  \.   I'c(i|)lc,    li'l    111.  ,S4  ; 

ptihliHlicil    \>y    flu-    .New     Yuik    Si.ilc  Stale  v.  VjiiKJerMlniK,  41!  Minn.  I  ij!). 

liibrnry,  pp.   1(»1-107.  =7  si:ifi>  v.   Vnn    l)i)r:in.    Kill   N.  (.'. 

-••Dent    V.    WeHt    Virginia,    TJlt    U.  S(54 ;   I'artts  v.  Sl:ile  (In.D.C)   \.   ]•]. 

H    lU.  HOli. 


§  133  PRACTICE  OF  MEDICINE.  123 

for  sale,^^  treatment  by  massage,  nursing  without  the  use  of 
medicine  or  operative  surgery,  and  mental  or  spiritual  treat- 
ment. In  some  states  the  law  has  been  held  to  apply  to  Chris- 
tian Science  and  to  osteopathy,^''  and  the  services  of  a  clairvoy- 
ant physician  have  been  held  to  be  medical  services  •*"  in  other 
states  methods  of  healing  not  using  medicine  or  surgery  arr 
regarded  as  not  Avithin  the  spirit  of  the  law."  The  law  of 
IlIinois^2  defines  practice  of  medicine  as  treating,  or  proposing 
to  treat,  operating  on  or  prescribing  for  any  physical  ailment 
or  any  physical  injury  to  or  deformity  of  another,  but  excludes 
from  the  operation  of  the  act  the  administration  of  domestic 
or  family  remedies  in  cases  of  emergency^ ^  and  treatment 
by  mental  or  spiritual  means,  without  the  use  of  any  drug  or 
material  remedy.  The  phrasing  of  a  particular  statute  may  be 
conclusive  as  to  its  application  to  certain  methods  of  treatment, 
and  the  decision  may  turn  in  part  upon  the  interpretation  given 
to  such  terms  as  "appliance"  or  "agency;"^"*  the  provisions  of 
the  law  regarding  study  and  examination  may  also  be  relied 
upon  to  show  that  they  were  intended  to  apply  only  to  par- 
ticular schools  of  medicine."*^  Massachusetts  provides  that  the 
act  for  the  registration  of  physicians  and  surgeons  shall  not 
apply  to  osteopathists,  clairvoyants  or  persons  practicing  hyj)- 
notism,  magnetic  healing,  mind  cure,  massage,  Christian  Science 
or  cosmopathic  methods  of  healing,  if  they  do  not  hold  them- 
selves out  as  practitioners  of  medicine,  or  practice,  or  attempt 
to  practice  medicine  in  any  of  its  branches.-**^  In  Germany  it 
is  only  the  assumption  of  the  title  or  designation  "doctor,"' 


38  People  ex  rel.  St.  Bd.  Health  v.  E.  A.  383;  State  v.  Loeflfring,  61 
Lehr,  196  111.  361,  63  N.  E.  725.  Oh.  St.  39,  46  L.  R.  A.  168. 

39  state  V.  Buswell,  40  Xebr.  158,  -i^  Illinois  Act,  Apr.  24,  1899,  §  7. 
24  L.  R.  A.  68;  Little  v.  State,  60  43  The  law  formerly  e.\clutled  both 
Neb.  749  84  N.  W;  248,  51  L.  R.  A.  administration  of  domestic  remedies 
717;  People  v.  Gordon,  194  111.  560,  and  emergency  services;  the  change 
62  N.  E.  858;  Bragg  v.  State,  134  making  only  an  exception  in  favor 
Ala.  165,  58  L.  E.  A.  925,  32  So.  of  the  conjoint  application  of  the 
767.  two  is  said  to  have  been  due  to  iu- 

40  Bibber  v.  Simpson,  59  Me.  181.  advertence  in  drafting  the  act. 

41  Smith  V.  Lane,  24  Hun.  632;  44  Hay  den  v.  State  (Miss.).  33 
State  v.  Mylod,  20  Eh.  T.  632,  41  L.  So.  653. 

E.  A.  428;    Nelson   v.   State  Bd.   of  45  state  v.  :\racKnight   (X.  C.),  42 

Health,  22  Ky.  Law  Eep.  438,  50  L.  S.  E.  580. 

4«  Rev.  Laws,  ch.  76,  Sec.  9. 


124  SATETY  AND  HEALTH.  §  134 

"physician,"  etc..  which  is  forbidden  without  proper  license.^" 
All  the  American  states  go  further  than  this,  covering  at  least 
the  traditional  methods  of  professional  treatment  irrespective 
of  the  use  of  title  or  designation  indicating  professional  stand- 
ing. It  is  probable  that  private  treatment,  not  for  money,  and 
not  as  a  matter  of  profession,  cannot  be  entirely  prohibited, 
but  the  neglect  of  parents  or  others  to  call  in  medical  aid  for 
those  who  are  in  their  custody  may  be  made  an  offense,  and 
has  been  made  an  offense  by  statute.-*^ 

LIMITATIONS    OF    THE    FEDEKAL    CONSTITUTION   UPON    THE 

POLICE  POWER  FOR  THE  PROTECTION    OF    SAFETY 

AND  HEALTH.     §§  134-139. 

;j  134.  Fourteenth  amendment  and  commerce  clause.'— The 
t'nited  States  has  power  to  control  state  legislation  r(\garding 
safety  ;iinl  lu'.-illh  under  the  14th  Amendment,  and  under  its 
power  over  commerce. 

Under  the  Fourteenth  Amendment  the  United  States  is  com- 
petent to  protect  individual  liberty  and  property  against  arlu- 
trary  or  unequal  state  legislation  enacted  under  color  of  pro- 
tection of  safety  and  health,  but  having  in  reality  no  such 
justification,  even  wliei-e  interstate  or  foreign  commerce  is  not 
involved.  Thus  the  United  States  Supreme  Court  has  an- 
nulled ;in  ordinance  regarding  laundry  establishments  because 
it  appeared  that  it  ^\•as  in  i-c.ilily  ;i  measure  discriminating 
against  one  race;-  but  so  far  no  case  has  arisen  in  which  the 
iud^rineiit  of  the  state  that  a  i-estraint  Avas  rcfpiired  in  the  in- 
terest of  health  or  safelx.  operative  exclusively  ui)()n  internal 
interests,  .-irid  respect  in;:  the  jn-inciple  of  ecpiality,  has  been 
overrulefl  by  till'  I'nited  Sl.iles  Supreme  Court.  The  extreme 
limit  of  toJeraner  nnisl  Kr  ImiiikI  in  the  sjinetion  given  to  the 
absolute  prohibition  of  the  iloniestie  ni;i  nui'aet  ui'e  and  s;ile  oi" 
ojroniHru'arine.''  TIm'  lu-ohiliit ion  i>\'  the  uKiiuifacture  and  sale 
of  li«|uor.'  and  of  ci^^jii-et tes''  has  likewise  been  held  to  he  legiti- 
mate under  the  jxiliee  pdwer.      It    ni;iy.  llierej'ore,  be  said   tiiat 

«T  Mrvor  VcrwnhunKHn'i-ht,  §  7it.  :' INiwrll  v.  PpniiHylvaiii:!,   1:^7  U.  S. 

•-  IVopli.  V.  l'i.TMon(.\.V.)OM  N.  K.  <578. 

l.'i:«;  Ui-u.  V.  Df.wncH,  l.'M'ox  (•'.111.  *  Mii)r|<r  v.  KiiiiHUH,  lL'3  U.  S.  623. 

«  S<M' jiIh*.  89  7'_'7.  7'JS.  r-Aiinfiii    v.    TcniioHscc,    170    U.    S. 

'  Yirk  Wo  V.  llopkiiiH.  llH  V .  S.  .'{43. 
356. 


§  135  FEDERAL  LIMITATIONS.  1 05 

purely  internal  legislation  in  the  interest  of  safety  and  h.-altii 
has  so  far  been  left  unimpaired  and  uncontrolled  with  the 
states. 

The  power  to  regulate  commerce  with  foreign  nations  and 
among  the  several  states,  was  intended  chiefly  to  be  exercised 
for  economic  purposes,  but  being  undefined  in  its  scope  and 
objects  it  is  necessarily  plenary  and  may  be  applied  to  the 
protection  of  safety  and  health.  Reference  has  been  made  to 
the  provisions  of  the  "United  States  Revised  Statutes  for  safety 
in  navigation,  and  an  act  of  Congress  requires  common  carriers 
engaged  in  interstate  commerce  by  railroad  to  adopt  certain 
precautions  for  the  safety  of  employees  and  travelers."^ 

§  135.  Safety  legislation  affecting-  commerce.  — In  the  ab- 
sence of  Congressional  legislation  safety  on  railroads  may  be 
secured  by  state  legislation  within  the  territory  of  the  state, 
although  the  regulations  may  affect  trains  in  interstate  traffic ; 
so  it  has  been  held  that  a  state  statute  forbidding  the  heating 
of  passenger  cars  by  stoves  or  furnaces  kept  inside  the  cars  is 
valid  although  it  controls  in  some  degree  the  conduct  of  those 
engaged  in  interstate  commerce.  "Persons  travelling  on  inter- 
state trains  are  as  much  entitled  Avhile  within  a  state,  to  the 
protection  of  that  state,  as  those  who  travel  on  domestic 
trains:"  and  "the  mere  grant  to  Congress  of  the  power  to 
regulate  commerce  with  foreign  nations  and  among  the  states 
did  not,  without  legislation  by  Congress,  impair  the  authority 
of  the  states  to  establish  such  reasonable  regulations  as  were 
appropriate  for  the  i)rotection  of  the  health,  the  lives  and  the 
safety  of  their  people. ' '" 

In  the  matter  of  navigation,  the  first  Congress  of  the  United 
States  adopted  the  state  pilot  laws,''  and  it  was  held  later  on 
that  the  regulation  of  pilotage  w^as  so  far  local  that  it  was  not 
within  the  exclusive  legislation  of  Congress,  but  that  the  states 
might  be  authorised. to  establish  systems  of  their  own,  and  had 
been  so  authorised  by  Congress  ;'-J  but  state  provisions  may  at 
any  time  be  superseded  by  federal  legislation. i"  A  prohibition 
Under  the  law  of  New  York  against  tli<'  racing  of  steamboats'' 

«Act  of  Mar.   2,   1893,   11   Supjil.  ^^  Cooley  v.  Board  of  Wardens.   12 

Rev.  Stat.,  p.  102.  TIow.  299,  1851. 

"  New  York,  X.  TI.  &  H.  R.  Co.  v.  i"  R.  St.  4237,  4401,  4444,  Spraigue 

New  York,  165  U.  S.  628.  v.  Thompson,  118  U.  S.  90,  1886. 

8  1  Statutes  nt   f.arge,  ])p.  55,  131.  n  L.  1839,  ch.  175. 


126  SAFETY  AND  HEALTH.  §  136 

would  be  valid,  the  matter  not  being  covered  by  federal  stat- 
ute: but  provisions  regarding  lights,  signals,  lifeboats  or  fire 
extinguishing  apparatus  might  be  held  to  yield  to  federal  rules 
of  the  same  character,  especially  if  the  operation  of  two  sets 
of  rules  would  result  in  conflicts. 

The  fact  that  the  United  States  has  granted  a  patent  for  an 
invention  does  not  protect  the  use  of  that  invention  within  the 
state,  if  condemned  by  state  legislation  as  dangerous  to  public 
safety.  This  rule  was  applied  to  oil  found  by  state  inspection 
to  be  unsafe  for  illuminating  purposes.' - 

The  United  States  has  no  power  to  prohibit  the  manufacture 
of  inflammable  materiaP"-  within  the  states  not  affecting  inter- 
state or  foreign  connnerce.^'* 

^  136.  Federal  power  not  exclusive  of  protective  state  legis- 
lation.—The  legislation  of  the  United  States  in  matters  of  in- 
terstate and  foreign  commerce  imdertakes  by  no  means  to 
afford  protection  against  all  the  dangers  to  public  health  Avhich 
unrestricted  commerce  might  involve  ;nid.  of  course,  the  inac- 
linii  of  Congress  must  not  be  construed  ;is  meaning  tlial  dan- 
gers tlo  not  exist  or  may  not  be  guarded  against.  Even  where 
Congress  has  legislated,  as  in  granting  to  the  federal  author- 
ities extended  (|uarantine  powers,  it  recognises  existing  state 
and  local  regulations,  and  directs  federal  co-operation  in  their 
execution  and  enforcement;'^'  state  quarantine  is  therefore 
valid  1  hough  affecting  commerce."'  The  federal  legislation 
])rovi(ling  for  inspect  ion  of  aiiinials  attempts  to  guai'd  only 
against  the  cxiiort  of  diseased  meat,  and  does  not  prevent  the 
iiMpoi-tiition  of  iid'ected  live  stock  into  a  stale.  Hence  such 
danger  must  be  dealt  witli  by  state  legislation,  and  this  has 
been  recognised  by  the  Supreme  Court  of  the  Ignited  States.'' 
"The  same  bale  of  goods,  the  s;inie  cask  of  |)idvisions,  oi-  the 

>i'  I'sittfTHon  V.  Kintti.ky,  97  U.  S.  ^  Uiiitcct  States  v    DcWitl.  H  Wall. 

501,    1M7JI,    v'tWufi    with    a|i[»n)val    an  Jl,  1870. 

Hiinlri({otiN     (IpriHioii      rcjjaniiiij^     tiic  '"'Sec.  'A  (if  Act  of   Feb.    l.",    1  S!t.'{, 

ronllict   hotwci'ii  a  statr-  law  n-j^iilat-  II    Siippl.   S4. 

iriK  tlw  practice  of  mcilicim-  and  tlic  "i  Morjrjm 's  &c.  S.  S.  Co.  v.  Loiiisi- 

claiin  to  mil  :i  rncijicinc  for  wliicli  :i  ana   St.   Boar<i   nf    llcnlth,    IIS   IT.  S. 

fiMJfral   patent    lia<l   lii-cn   isHucd,  .lor-  \'>'t,     lunl     ('njiipa^^iiie     I'ramaisc     v. 

linn    V.    f)vcr>4ccrH    ..f    Djiylon.    |    Oli.  State    Hoard    of    I  lea  It  li.    1S(5    V.    S. 

'2f*r,.  :is(i. 

'•' .Mixture    of    naplillia    with    illn  • '  KiniiniHli  \ .  I'.ail,  I  L'!»  U.  S.  i:i7  ; 

miDatiug  oil».  'aHmuHHcn  v.    Idaho,   181   U.  S.  198; 


§  137  FEDERAL  LIMITATIONS.  127 

same  ship,  that  may  be  the  subject  of  commercial  regulation, 
may  also  be  the  vehicle  of  disease.  And  the  health  laws  that 
require  them  to  be  stopped  and  ventilated  are  no  more  intench^l 
as  regulations  on  commerce  than  the  laws  which  permit  their 
importation  are  intended  to  inoculate  the  comnnmity  with 
disease.  Their  different  purposes  mark  the  distinction  between 
the  powers  brought  into  action;  and,  while  frankly  exercised, 
they  can  produce  no  serious  collision.  "^^ 

§  137.     Exercise  of  state  police  power  not  conclusive.— Yet 

it  is  the  purpose  of  the  federal  power  over  commerce  to  pre- 
serve its  freedom,  and  an  unrestricted  power  of  the  states  for 
the  alleged  protection  of  health  might  easily  be  abused  to 
impede  commerce  and  protect  domestic  industries.  Therefore 
the  federal  courts  do  not  accept  as  conclusive  the  judgment 
of  the  state  legislature  that  a  measure  restraining  commerce 
is  called  for  by  the  interest  of  public  health,  but  inquire  in 
every  case  whether  there  is  a  legitimate  exercise  of  the  police 
powder.  Thus  wiiere  a  state  forbids  the  manufacture  and  sale 
of  an  article  as  injurious  to  health,  which  article  is  generally 
recognised  as  a  legitimate  subject  of  commerce,  the  United 
States  wall  protect  its  importation  and  sale,  while  in  the  orig- 
inal package.  This  principle  was  applied  to  the  legislation 
prohibiting  the  sale  of  oleomargarine,  which  had  previously 
been  upheld  as  a  purely  domestic  measure.^ ^  So  the  prohibi- 
tion of  the  sale  of  cigarettes,  recognised  as  valid  where  com- 
merce is  not  affected,  was  held  inapplicable  to  imported  cigar- 
ettes in  the  original  package,  although  the  court  refused  to 
recognise  small  packages  for  retail  sale  as  original  packages 
for  the  purpose  of  withdrawing  them  from  the  power  of  the 
state. 2" 

§  138.  Discriminative  legislation  under  color  of  sanitary 
power.— The  federal  courts  moreover  will  not  allow  a  measure 
to  stand  which  upon  the  plea  of  health  discriminates  against 
foreign    products,   the    discrimination    being    in   reality   not 

Smith  V.  St.  Louis  &  S.  W.  E.  Co.,  i»  Schollenberger  v.  Pennsylvania, 

181   U.   S.   248;    Missouri,   K.   &   T.  171  U.  S.  1;  Powell  v.  Pennsylvania, 

K.  Co.  V.  Haber,  169  U.  S.  613;  Eei.1  127  U.  S.  67S. 

V.  Colorado,  187  U.  S.  1.37.  -^'i  Austin   v.   Tennessee,   179  U.  S. 

18  Johnson  J.  in  Gibbous  v.  Ogileu,  343. 
9  Wh.  at  p.  235. 


128  SAFETY  AND  HEALTH.  §  137 

ajrainst  the  disease,  but  afrainst  the  locality  from  which  the 
import  comes. 

In  Minnesota  a  statute  prohibited  the  sale  of  fresh  beef, 
veal,  etc.,  except  from  animals  inspected  by  local  officers  in 
the  stati^  within  twenty-four  hours  before  their  slaufi:hter;  in 
Virjrinia  a  statute  allowed  the  sale  of  fresh  meat  at  a  distance 
of  one  hundred  miles  or  miu'c  from  the  place  of  slauiihter  only 
after  inspection  by  local  officers  for  which  the  owner  lind  to 
|)ay  one  cent  per  pound.  The  Supreme  Court  declared  both 
statutes  unconstitutional,  the  Minnesota  Act,  because  it  made 
the  importation  of  fresh  meat  from  other  states  jn'actically 
impossible.-'  the  Viro:inia  Act  because  it  burdened  this  im- 
l)ortation  by  an  onci-ous  tax  havintr  practically  the  same  ett'ect 
as  an  absolute  ])rohibition.--  Another  Yirjjinia  act  Avas  de- 
clared unconstitutional  which  required  the  inspection  of  all 
fltiiii-  lirouirht  into  the  state  and  payment  of  a  fi>e  therefor, 
while  it  (lid  not  require  the  inspection  of  Hour  made  within 
tlif  statt*.--  Ill  these  cases  it  was  clear  that  the  statute  ex- 
presslx'  or  hy  necessjii-y  operation  made  a  difference  between 
the  state  in  which  it  was  enacted  and  other  states,  which  did 
not  corri'spond  to  a  similai"  difference  of  sanitary  conditions. 

FjVcii  wlici-c  tilt'  disease  guarded  aj;ainst  is  local  the  pro- 
tection of  the  freedom  of  connnerce  will  warrant  an  inquiry 
whellici-  tile  daiiiicr  justifies  the  dcni-cc  of  the  restraint  im- 
po.sed.  S(»  ;i  .Missouri  statulc  fdrliiddiiii;  the  importation  of 
Texas  cattle  durinir  ci.irlit  inontlis  nl'  llic  vcjir,  was  declared 
une<»nstit  lit  ioii;il.-'  The  court  took  tlie  view  that  since  no  dis- 
eriniiiiat  ion  was  madr  lirtweeii  sound  mikI  infected  cattlt\  the 
sliitiitc  went  bey(»nd  the  necessities  of  tlu'  case.  Uut  in  llu' 
later  ciise  of  Kiiiiiiiish  v.  I'.all-"'  the  court  said,  referriiiL;'  to 
Uailroad  ( 'om|»an\'  v.  Iliiseii:  ".Xo  ;itteiiipt  was  iiiiide  lo  show 
that  all  Texas.  Mexic;iii.  or  Indinii  c;it11e  coiiiin;.r  iVoiii  the 
malaria!  districts  <lui-iiiL'-  the  monllis  inciilioiii'd  were  infected 
with  the  disease,  or  that  such  cattle  were  so  ^'•eiierally  infected 
thai  it  would  liavi'  li.en  inipossihle  to  se|iaratc  the  lieallhy 
I'roiii  tin-  diseased.  Had  siirh  proof  hceii  ^dveii.  a  dilVereiit 
qiU'Htioii  would  have  1 n  |iresenli(l  for  the  coiisideral  ion  of  the 

'  MiiiiM'mitn   v.   H;irl>cr.    I.'IC.   I'.  S.  -'•>  Voi^jlil    v.   \Vri^;lll,    Ml    I'.  S.  iJi', 

•''•i:».    !'<!•<•.  ISid. 

-2  lirimnuT   v.    Hrliiiuui,    l.'JM   U.   H.  ^«  H;iniiilt;il   &c.    H.    Co.    v.    IIiisimi. 

78,  18JM.  \)r,  II.  H.  4(>.-).  1M7M. 

20  129  IT.  H.  JIT,   IHSfl. 


§  139  FEDERAL  LIMITATIONS.  129 

court."  This  statement,  contirnied  in  a  subsequent  case,-" 
indicates  that  a  proper  quarantine  measure  will  he  upiicld 
though  operating  against  importation  from  other  states  where 
it  can  be  shown  that  the  source  of  disease  is  local,  and  this 
principle  lias  since  been  liberally  applied  by  the  Suj)rem«' 
Court.-' 

§  139.  Louisiana  v.  Texas.— The  conflict  between  state  police 
power  and  the  freedom  of  interstate  commerce  was  presented 
in  a  peculiar  form  in  the  case  of  Louisiana  v.  Texas.^**  The 
health  authorities  of  the  state  of  Texas  had  declared  a  rigid 
quarantine  and  embargo  on  goods  coming  from  New  Orleans, 
where  cases  of  yellow  fever  had  appeared,  virtually  prohibit- 
ing all  commerce  from  that  city  into  Texas,  to  the  great  detri- 
ment of  the  business  interests  of  New  Orleans,  and,  as  was 
alleged,  to  the  great  advantage  of  rival  commercial  centres  in 
Texas.  The  state  of  Louisiana,  alleging  that  such  absolute 
l)rohibition  was  unnecessary— as  was  demonstrated  by  the  very 
different  treatment  on  the  part  of  Texas  of  fever  infected  parts 
of  Mexico  and  the  West  Indies— and  that  her  citizens  were 
thereby  impoverished,  the  value  of  her  taxable  property  and 
])ublic  lands  reduced,  her  revenues  diminished,  and  immigra- 
tion into  the  state  retarded,  asked  for  an  injunction  against  the 
state  of  Texas,  her  governor  and  health  officers,  restraining 
them  from  carrying  into  effect  such  regulations  and  from  ap- 
plying to  New  Orleans  other  regulations  than  those  establisbinl 
against  other  foreign  ports  infected  with  yellow  fever.  The 
Supreme  Court  refused  the  injunction  on  the  ground  that  it 
had  no  jurisdiction  over  a  grievance  of  that  character  which 
did  not  constitute  a  controversy  between  two  states  within  the 
meaning  of  the  second  section  of  the  third  article  of  the  con- 
stitution. The  court  held  on  the  one  hand  that  inasmuch  as 
the  vindication  of  the  freedom  of  interstate  commerce  is  not 
committed  to  the  state  of  Louisiana,  and  that  state  is  not  en- 
gaged in  such  commerce,  the  cause  of  action  must  be  regarded, 
not  as  involving  any  infringement  of  the  powers  of  the  state 
of  Louisiana  or  any  special  injury  to  her  property,  but  as  as- 
serting that  the  state  is  entitled  to  seek  relief  in  this  wa>- 
because  the  matters  complained  of.  aff'ect  her  citizens  at  large, 

■2<:  Missouri,  K.  &  T.  E.  Co.  v.  Ha-  Co.,  ISl  U.  S.  248;  Reid  v.  Colorado, 

her,  169  U.  S.  613,  1898.  187  U.  S.  1.S7. 

-•T  Rasmussen  v.  Idaho,   181   U.  S.  -'s  176  U.  S.  1.  1900. 
198;  Smith  v.  St.  Louis  &  S,  W.  R. 


130  SAFETY  AND  HKALTir.  §  UO 

which  is  obnoxious  to  the  principle  thai  the  Eleventh  Amend- 
ment must  not  be  evaded  by  a  state  assuming  the  prosecution 
of  claims  of  her  citizens  against  another  state;  it  held  on  the 
other  hand  that  "a  controversy  between  states  does  not  arise 
unless  the  action  complained  of  is  state  action,  and  aets  of 
state  officers  in  abuse  or  excess  of  their  powers  cannot  be  laid 
hold  of  as  in  themselves  committing  one  state  to  a  distinct 
collision  with  a  sister  state.  "-'-^  Whether  the  action  of  the 
Texas  health  officer  was  justified  by  the  statutes  of  Texas  or 
whether  it  was  valid  or  invalid  under  the  Federal  Constitution, 
the  court  does  not  determine,  but  some  of  the  concurring 
ojiinions  strongly  intimate  that  if  a  case  were  properly  brought 
before  tht»  federal  courts,  the  Texas  regulations  might  be  de- 
clared void  as  violating  the  freedom  of  interstate  commerce, 
if  their  character  appeared  to  be  as  alleged.  The  case  shows 
very  clearly  the  possible  abuses  of  the  sanitary  power  of  the 
states,  and  points  to  the  remedy  suggested  by  the  court,  namely, 
that  "Congress  could  by  al'lirmative  action,  disi)lace  the  local 
laws,  substitute  laws  of  its  own,  and  thus  correct  any  unjusti- 
fiable and  ')])pressive  exercise  of  power  by  state  legislation." 

LOCAL  rOWKKS  FOK    TIIH   PHOTI-:('TIOX    OF    SAFETY     AND 

HEALTTT.      §§  UO-142. 

ij  140.  Delegated  ordinance  powers.  The  exercise  of  the 
police  power  for  safety  and  healtli  is  of  the  greatest  importance 
in  ciost'ly  populated  districts.  'I'his  part  of  the  police  powei* 
has  thcn'rorc  chiefly  grown  up  in  cities,  and  there  to-da>'  (inds 
its  in<»sf  extensive  aj)|)lication.  This  fact  is  recognised  by  an 
ample  (lelei,Mti(»n  «if  j)owers  of  local  legislation  in  this  field  by 
file  state  to  inc<)rpoi'ate(l  muni(ip;ili1  ies.  This  delegation  — 
found  in  special  cbai'ters  or  in  genef;il  a<'ts  niidei-  which  cities 
are  organised  — consists  |i;irlly  in  Hie  einnner;il  ion  of  specific 
powers  inilicating  the  sui)jects  uimti  which,  .-iiid  the  measni-es 
by  which  local  legislation  m.i\  operate.  i)artl\'  in  grants  of 
power,  couclie«l  in  more  gcnerji!  tiTnis,  to  dechice  \\\\:\\  sli;ill  he 
a  nnisjincc,  and  to  altatc  the  .same;  to  do  ;dl  acts  and  make  all 
regulations  wliieh  may  be  necessaiy  oi-  i-.\|)e(lient  for  the  j)i-o- 
inotion  of  health  ot-  the  sn|>pressioii  of  disease;  or  generally  to 
provide  ff»r  the  safety,  welfare,  .-iiid  good  goveniiiient  of  the 
connininity  (k'cnenil  welfare  clause). 

wHw  on  the  point  of  jiiri.mlirfion,  MiwHonri  v.  iJJiiKpis,  isd  IT.  S.  208. 


§  141  LOCAL  POWERS.  131 

Comparing  the  list  of  subjects  of  ordinance  power  to  be 
found  in  most  American  city  charters  with  the  classification 
of  safety  and  sanitary  legislation  above  given,  it  will  be  found 
that  it  covers  almost  the  whole  of  the  police  power  in  this  mat- 
ter, so  far  as  its  operation  can  be  locally  restricted  to  the  terri- 
tory of  a  city.  The  notable  exceptions  are  regulations  con- 
cerning the  practice  of  professions  and  the  field  of  factory 
legislation,  which  are  usually  left  to  state  statutes,  the  former 
having  no  specific  reference  to  density  of  population,  and  the 
latter  having  a  considerable  influence  upon  conditions  of  pro- 
duction and  being  therefore  inseparable  from  economic  inter- 
ests generally  reserved  to  state  legislation.  The  principle  of 
delegation  seems  to  be  to  make  the  municipal  police  power 
co-extensive  with  local  dangers  arising  from  the  close  aggrega- 
tion and  contact  of  persons  and  property  in  a  limited  space  or 
territory. 

§  141.  Principle  of  construction.— This  principle  of  delega- 
tion may  be  fitly  recognised  as  a  principle  of  construction  of 
charter  powers,  which  should,  if  consistent  with  their  wording, 
be  given  an  effect  adequate  to  meet  local  dangers  by  appro- 
priate and  customary  measures  of  restraint  or  requirement. 
In  case  of  an  epidemic  disease  local  authorities  are  allowed  to 
exercise  incisive  powers  over  person  and  property^**  which  in 
the  absence  of  immediate  danger  would  not  be  sustained  under 
a  delegation  couched  in  general  terms. s^  Under  a  power  to 
take  measures  for  the  prevention  of  fires,  or  even  under  the 
general  welfare  clause,  cities  may,  according  to  the  predom- 
inant judicial  opinion,  establish  fire  limits,  within  which  the 
erection  of  frame  houses  is  prohibited  •,^^  a  power  in  some  juris- 
dictions denied  in  the  absence  of  a  specific  grant,^^  but  sup- 
ported by  the  long  established  practice  of  legislation.^^ 

As  regards  establishments  or  arrangements  which  affect 
health  only  very  remotely,  and  are  dangerous  chiefly  when  not 
properly  kept,  or  when  existing  in  excessive  numbers,  or  when 

30  Mayor  of  Baltimore  v.  Harri-  29  La.  Ann.  651 ;  City  of  Olympia  v. 
son,  1  Gill.   (Md.)   264.  Mann,  1  Wash.  389,  12  L.  R.  A.  150. 

31  Potts  V.  Breen,  167  111.  67,  47  33  Hudson  v.  Thornc,  7  Paige  261; 
N.  E.  81.  Pye  V.  Peterson,  45  Tex.  312. 

32  Wadleigh  v.  Gilman,  12  Me.  34  Massachusetts  Colonial  Acts  of 
403;  Alexander  v.  Greenville,  54  1679,  1692;  Resp.  v.  Duquet,  2 
Miss.  659;  Ford  v.  Thralkill,  84  Ga.  Yeates   (Pa.)   483,  1799. 

169;  Mayor  of  Monroe  v.  Hoffman, 

9 


232  SAFETY  AND  HEALTH.  §  142 

located  in  built-up  portions  of  a  city,  we  may  distinguish  two 
tendencies  in  the  judicial  interpretation  of  municipal  charters : 
the  one,  to  sustain  their  prohibition  only  where  the.  particular 
establishment  can  be  shown  to  be  a  nuisance  in  fact ;  the  other, 
to  allow  a  total  prohibition  within  the  city  limits,  provided  the 
prohibition  is  not  altogether  unreasonable  or  oppressive.  So 
as  to  cemeteries. 3''''  hospitals,^*^  keeping  animals,^"  and  slaughter 
houses."'^''  Where  the  power  is  only  to  declare  and  abate 
nuisances,  it  is  properly  restricted  to  nuisances  in  fact; 
where  a  power  is  given  over  a  subject-matter  that  ma.y 
tend  to  give  rise  to  nuisances,  the  charter  will  usually  express 
whether  it  is  a  power  to  regulate  or  to  suppress.  In  the  ab- 
sence of  such  expression  it  would  seem  that  the  city  should 
have  power  to  forestall  the  nuisance  by  keeping  the  danger 
altogether  away  from  its  territory,  provided  such  course  is  in 
/  accordance  with  the  customary  practice  of  municipalities ;  and 
provided  that  regulation  is  not  e(iually  efficient,  for  then  pro- 
hihition  would  be  oppressive  and  unreasonable. 

J5 142. ^i*  Judicial  control  as  to  reasonableness:— The  nuinieipal 
police  power  is  subject  to  a  strong  jutlieial  control  as  to  the 
njode  of  its  exercise.  The  courts  assume  a  general  function  of 
supervision  regarding  the  adjustment  of  means  to  ends  in  the 
protection  of  public  interests.  While  they  profess  to  regard 
the  state  legislature  as  a  co-ordinate  power,  they  frankly  treat 
thi*  nninicii)al  authorities  as  subordinate.  Through  this  atti- 
tuile  the  courts  have  avoided  the  laying  down  of  absolute 
liiiiitjitions,  but  have  been  satisfied  to  judge  each  ordinance 
oil  its  own  merits.  This  jirocess  has  however  resulted  in  devel- 
oping i)rincii)les  of  limitation  which  can  with  great  advantage 
bf  applied  to  state  legishilion.     As  the  power  of  judicial  control 

•''5  Wider   p<iwer:      City   Council    v.  -''Wider    i)()\vpr:       Djirlinf^ton     v. 

HjiptiMf    CInin-li,   4   Htrob.   8.   C.   I'.m,  Ward,  48  8.  C.  570,  .'iS  L.  K.  A.  :V26, 

18r>0;   P«K)plo  V.  Pratt.  129  N.  Y.  OS,  1S<»7;   State  v.  Holcomb,  OS    I:..    107. 
29  N.  K.  7.  Narrower:      V.\  parte  (I'Lcarv,  i\~> 

Nnrrf)wor:      Lake   \'ie\\   v.   Let/,,  41  Miss.    SO;    ArkiKlelpJiJa    v.    Clark,    5:2 

111.  HI.  Ark.  L'.J. 

I"  Wider  power:      .Milne  v.   David-  •••"Wider    ])ower:       i;.\    |i:irte    lleil 

•on,  r>    Mart.    N,   H.   409,    18'J7;    jier-  hron,  65  Cal.  00!»;  BeiliiiK  v.  lOvans- 

hnpH   to   \h>  explained    by    loeal   Hani-  ville,  144   Ind.  (511;  .'55  L.  W.  .\.  272. 
Uiry  eonditionH  in  New  OrleaiiH.  Narrower:     Wrcford  v.  I'eople,  14 

Narrower:      HeUn'tmen  v.   Murray,  Mich.  41. 
Ifl    I'iek.    121;    HeHMonieH    v.    Fmlian-  •■"•  Adtninislrat ive        orders,       see 

npoli"    '1  T..d    m9^  isHO.  J''irc  Dopt.  v.  (Jilnionr.MK  N.Y.  453. 


§  143  CONDITIONS  AND   MEASURES.  I33 

over  statutory  legislation  is  more  and  more  distinctly  assumed, 
and  the  theory  of  the  necessity  of  express  limitations  is  aban- 
doned, the  adjudications  on  ordinances  will  become  more  valu- 
able as  x)recedents  to  indicate  the  measure  of  legislative  power 
in  the  interest  of  health  and  safety.  Even  applying  some  of 
the  essential  limitations  of  the  municipal  ordinance  power  to 
state  legislation,  others  will  remain  peculiar  to  the  former. 
Under  the  principle  of  local  self-government,  local  authorities 
cannot  be  vested  with  powers  necessarily  exceeding  their  ter- 
ritorial jurisdiction ;  those  matters  therefore,  which  eciually 
affect  the  people  of  the  state  at  large,  and  cannot  be  confined 
locally,  must  be  reserved  to  the  state  legislature ;  so  the  opera- 
tion of  railroads  apart  from  local  traffic  aud  the  safety  of  the 
streets  of  the  city.  Moreover,  the  inauguration  of  a  novel 
policy  in  matters  of  safety  and  health,  the  prohibition  of  arti- 
cles of  consumption  possibly  but  not  undoubtedly  injurious  to 
health,  the  establishment  of  monopolies,  the  restriction  of  the 
right  to  pursue  established  avocations,  may  under  circum- 
stances be  conceded  to  the  legislature  of  the  state,  but  cannot 
be  introduced  by  local  authorities  under  mere  general  grants 
of  power. 

LIMITATIONS     OF     HEALTH     AND      SAFETY      POWEES      WITH 
EEFEEENCE    TO    CONDITIONS     AND     MEASURES. 

§§  143-155. 

§  143.  The  problems  involved.— The  peculiar  difficulty  of 
safety  and  health  legislation  is  that  the  possible  causes  of 
injury  to  person  and  property  are  extremely  numerous  and 
practically  ubiquitous,  that  there  is  hardly  any  industry  in 
which  they  may  not  be  found  if  sought  for,  and  that  while  the 
danger  is  often  slight  and  remote,  the  measure  devised  to  com- 
bat it  may  profoundly  aft'ect  economic  interests,  favoring  one 
set  of  interests  and  prejudicing  another. 

The  questions  which  present  themselves  in  the  examination 
of  a  safety  or  health  measure  are:  does  a  danger  exist?  is  it 
of  sufficient  magnitude?  does  it  concern  the  public?  does  the 
proposed  measure  tend  to  remove  it  ?  is  the  restraint  or  require- 
ment in  proportion  to  the  danger?  is  it  possible  to  secure  the 
object  sought  without  impairing  essential  rights  and  princi- 
ples? does  the  choice  of  a  particular  measure  show  that  some 
other  interest  than  safety  or  health  was  the  actual  motive  of 
legislation  ? 


j^34  SAFETY  AND  HEALTH.  §  144 

$  144.  Inconclusiveness  of  legislative  judgment.— All  these 
are  <iiiestious  of  fact  ratlier  than  ([uestions  of  law,  and  if  there 
is  any  serious  doubt  as  to  the  danger  or  remedy,  the  legisla- 
ture has  better  facilities  for  resolving  it  than  a  court  of  justice, 
which  must  rely  upon  the  testimony  of  parties  in  a  particular 
case,  which  may  be  collusive,  and  in  different  cases  may  be  con- 
flicting.^ 

Yet  if  the  passage  of  a  statute  were  conclusive  evidence  of 
the  existence  of  the  danger  and  of  the  necessity  of  the  remedy, 
the  power  of  the  k^gislature  in  the  most  important  field  of  the 
police  power  woukl  be  practically  unrestricted.  Whatever  may 
have  been  or  may  be  in  some  cases  now,  the  profession  of  the 
courts  as  to  deference  to  the  judgment  of  the  legislature  and 
unciuestioning  confidence  in  its  good  faith,  yet  as  a  matter  of 
fact  the  courts  do  not  surrender  their  control  as  to  the  neces- 
sity or  approi)riateness  of  a  safety  or  health  measure.  It  has 
been  .said  that  "it  is  for  the  legislature  to  determine  the  exi- 
gency (that  is,  the  occasion)  for  the  exercise  of  the  power,  but 
it  is  ck^arly  within  the  jurisdiction  of  the  courts  to  determine 
what  are  tlie  subjects  upon  which  the  power  is  to  be  exercised 
and  the  reasonabkmess  of  that  exercise."-  Yet  the  exigency 
or  occasion  generally  consists  entirely  in  the  relation  of  the 
measure  proposed  to  the  subject  acted  upon:  the  health  of 
miners  forms  the  subject,  the  regulation  of  employment  is  the 

i"Tlipre  is  a  inaiiifcst  absurdity  108    Mich.    527,    32    L.    K.    A.    S53, 

in  allowing  any  tribunal,  either  court  1896.)       The    conclusiveness    of    the 

or  Jury,  to  <lotPrniinc  from  testimony  legislative  judgment  as  to  the  neces- 

in  the  rase  the  »|UPsti(tn  of  the  con-  sily   or  wisdom   of  a   sanitary   moas- 

Htitutioiiulity    of    the    law.     •     •      •  ure  is  strongly  insisted  upon  in  the 

The  first  cuHe  presented  might  show  matter  of  compulsory  vaccination  by 

by   the   opinions   of   many   witnesses  the  Supreme  f!ourt  of  Georgia,  Mor- 

thftt  the  use-  of  th<'  dry  emery  whi'd  ri.--'  v.  Columbus,   102  (lii.   702,  42  L. 

IH    almoHt     ncri'ssarily    fatal    to    the  U.   A.    17;":      "With    llii'    wisdom    or 

oporative,  while  the  next  might  show  policy  of  vaccination,  we  have  iiotii- 

rxa/'tly   the  ojtposite  state  of   facts,  ing  to  do.     •     •     *     ^pijp  legislature 

•     •     *     <'ourts  of  lust  resort    *    •    •  has  seen   fit   to  a<lopt  the  opinion  of 

would  have  no  means  nf  ascertaining  those  scientists  wlio  insist  that  it  is 

whofher   it    was   a   e«dltisive   case   or  eflic.Mcious,  and  this  is  conclusive  up- 

not,   or   whether   the   weight    nf   evi-  on   us."     Hcc   also   observ.ations  on 

■' •■  was  in  accord  with   the  truth,  legislative   power   to   dcitermine   ex- 

*     Th«'    IngiHlalure    in    cjctrT-  istence  of  piddic  ilanger  in  State  v. 

mining  upon  the  passage  of  the  law  Main,  Oi>  (Jonn.   123,   l.'W. 
may    mak«>    inve<(tigations    which    the  -  He    Morgan,   2(5   (!ol.   415,   47    Ti. 

r....,r»    •■■•mot."      (I'eople    v.    Smith.  1?     A.  52. 


§  146  COiNDITiONS  AND   MEASUKES.  I35 

measure  proposed,  the  effect  of  time  of  labor  upon  health  is  the 
exigency  or  occasion ;  and  it  is  difficult  upon  that  l)asis  to  dis- 
tribute the  functions  of  courts  and  h'oishitun-s. 

§  145.  Judicial  notice  of  established  scientific  laws  and 
general  conditions.  — Thei-e  is,  however,  sufficient  authority  for 
saying  that  while  the  courts  will  not  enter  into  controverted 
questions  of  fact,  they  Avill  take  judicial  notice  of  established 
sanitary  and  mechanical  laws  and  conditions,  of  the  (juality  of 
articles  of  consumption,  etc.  Thus  the  Supreme  Court  of  Illi- 
nois has  taken  notice  of  a  degree  of  danger  in  holding  that 
safety  regulations  required  in  densely  populated  districts  or 
countries  are  unnecessary  in  a  more  sparsely  settled  country  ;3 
the  United  States  Supreme  Court  has  recognised  that  while  the 
wholesomeness  of  a  novel  article  of  consumption  may  be  a 
doubtful  question  to  be  resolved  by  the  legislature,  it  may  in 
course  of  time  become  so  well  known  and  established  that  its 
wholesomeness  will  be  judicially  noticed.-^  The  judicial  notice 
may  also  be  of  a  negative  character ;  i.  e.,  the  court  may  refuse 
to  accept  legislative  condemnation,  because  it  knows  that  the 
detrimental  character  of  an  article  is  not  established.  So  in 
the  matter  of  cigarettes.^ 

§  146.  Sanitary  purpose  need  not  be  expressed.— A  legisla- 
tive declaration  that  a  danger  to  health  or  safety  exists  is 
therefore  not  conclusive.  If  the  danger  exists  an  express 
legislative  declaration  of  the  fact  is  not  necessary ;  it  is  suffi- 
cient that  it  appears  from  the  provisions.  Even  where  the 
subject-matter  of  a  law  must  be  stated  in  its  title,  an  express 
reference  in  it  to  health  or  safety  is  not  necessary.^  When  the 
act  proclaims  itself  expressly  as  a  safety  or  health  measure, 
while  in  fact  it  subserves  another  interest,  a  question  under 
constitutional  provisions  as  to  title  may  arise,  although  thr 
precise  point  does  not  appear  to  have  been  adjudicated ;  but 
where  the  subject-matter  is  otherwise  sufficiently  indicated  in 
the  title,  an  additional  untenable  reference  to  safety  or  hen  1th 
should  not  be  fatal,  if  not  deceptive  or  misleading.  Thus  it  is 
conceived  that  a  title  "an  act  to  regulate  the  manufacture  and 

3  Toledo  &c.  E.  Co.  v.  Jacksonville,  ■'  Dictuvi  in  Austin  v.  Tennessee, 
67  111.37.  179U.  S.  343. 

*  Scholleuberger  v.  Pennsylvania,  "=  Re  .Morgan,  2G  Col.  -415,  47  L.  K. 
171  U.  S.  1.  A.    52,    recognising    tliis    with    some 

hesitation. 


-^36  SAFETY  AND  HEALTH.  §  147 

sale  of  oleomargarine,  and  for  the  better  protection  of  the 
public  health"  (leaving  out  the  words  "and  for  the  prevention 
of  fraud"  which  are  found  in  the  law  of  New  York),  would 
not  be  fatal,  although  oleomargarine  legislation  can  be  justi- 
fied only  on  the  ground  of  prevention  of  fraud. 

§  147.  Difference  of  objects  as  justifying  different  meas- 
ures.—The  distinction  between  different  objects  of  legislation 
is  important,  because  a  measure  may  be  appropriate  and  admis- 
sible for  one  object,  but  not  for  another.  The  sale  of  oleomar- 
garine may  be  subjected  to  stringent  regulations,  to  protect 
the  public  against  fraud ;  it  can,  according  to  the  better  doc- 
trine, be  absolutely  prohibited  only  if  the  article  is  unwhole- 
some, and  the  probability  that  the  article  may  be  so  adulterated 
as  to  become  unwholesome  does  not  furnish  a  justification  for 
an  absolute  prohibition."  The  diff'erence  of  objects  may  also 
become  relevant  if  the  enactment  proceeds  from  a  subordinate 
authority  having  power  only  to  protect  health  and  safety.  It 
may  thus  be  questionable  whether  a  prohibition  against  spit- 
ting in  public  conveyances  is  within  the  power  of  a  board  of 
health:  or  whether  the  prohibition  of  bill  boards  could  be  jus- 
titi»'d  iiH'i't'ly  as  a  regulation  foi-  safety.*^  If  watered  milk  is 
not  uiiwhoU'soiiu',  its  sale  may  be  forbidden  as  a  measure 
against  fraud  only  if  it  is  sold  as  milk,  on  the  ground  that  an 
article  sold  under  that  name  may  l)e  required  to  have  standard 
ingredients  prescrilnd  liy  law,  the  statute  could  probably  not 
condemn  it  as  unwholesome,  and  (»ii  lliat  ground  pr()hil)it  its 
sale  al)S()lutely  no  matter  how  ti-uthi"ully  the  admixture  were 
indicated  tn  tin-  purchaser." 

5;  148.  Measure  must  tend  to  remove  danger.  — That  the 
measure  proposed  should  at  least  have  a  tendency  to  remove 
or  re(lu<-e  the  danger  against  which  i1  purp(U-ts  to  he  dii-ected, 
is  a  princii)le  which  does  not  need  unich  argumeni  to  supj)ort 
it.  Tlie  case  of  Chicago  v.  Xelchei-'"  rurnishes  an  e.xaiuple  of 
an  'riactmeiit  -  in  this  case  an  ordinance      based  u|)on  the  sani- 

T  SrholIenbcrKor  v.  I'ciiiiHylvaniii,  v.  WchI,  104  N.  V.  SIO.  M  N.  K.  673. 
171   U.  8.  1;   Penplr>  v.  Marx,  05)  N.  »  Pcr.pio    v.    ('ippprly.    101     N.    Y. 

Y.  377;   cnntrn,   I'nwrll   v.  Ci.mmon-  VM,  .-ippMnMitly  lo  the  cotitrarv,  Imt 

wraith.    114    I'll.  Hf.   2r^^^■,    \\'r\v.h\   v.  the  Htiitiitc  coiKlcninod  watered  milk 

8»nlc,  SH  .M.|,  4.1(5,  M  Atl.  TSr*.  as  a.liiltcrafod,   not   uh  unwholesome. 

•  Upheld  on  that  ^fronnfl,  RochcHter         i"  183  III.  104,  55  N.  E.  707. 


§  149  APPROPRIATENESS  OF  MEASURES.  137 

tary  power,  yet  having  no  ascertainable  relation  to  the  public 
health.  The  ordinance  made  it  unlawful  for  any  person  selling 
dry  goods,  clothing,  jewelry,  and  drugs,  to  have  exposed  for 
sale,  or  sell,  any  meats,  fish,  butter,  cheese,  lard,  vegetables  or 
other  provisions.  The  city  of  Chicago  has  power  to  regulate 
the  sale  of  these  provisions,  and  to  provide  for  place  and  man- 
ner of  selling  the  same.  This  power  is  granted  for  the  public 
health,  but  the  mere  prohibition  of  their  sale  by  persons  who 
also  happen  to  sell  other  goods  without  reference  to  place  or 
manner  of  sale,  has  evidently  not  the  slightest  tendency  to 
I)romote  the  public  health.  The  ordinance  was  therefore  de- 
clared to  be  invalid.  There  can  be  no  doubt  that  a  statute 
containing  the  like  enactment  would  not  have  fared  differently. 

§  149.    Measure  need  not  be  the  most  adequate  conceivable. 

— On  the  other  hand  a  statute  in  providing  against  some  par- 
ticular danger  need  not  cut  off  all  possible  ways  of  incurring 
it,  provided  the  measure  adopted  greatly  reduces  its  likelihood. 
In  sustaining  the  act  forbidding  women  to  be  employed  in  any 
manufacturing  establishment  more  than  ten  hours  in  any  one 
day,  the  Supreme  Court  of  Massachusetts  remarked' ^  that  this 
prohibition  did  not  prevent  any  woman  from  laboring  in  any 
occupation  as  many  hours  as  she  pleased,  provided  she  did  not 
labor  in  the  same  service.  This  possibility,  so  far  from  remov- 
ing, might  on  the  contrary  be  held  to  be  an  objection  to  the 
constitutionality  of  the  act,  if  it  in  reality  frustrated  its  object, 
for  a  restraint  serving  no  purpose  has  no  justification.  But 
practically  the  control  of  the  number  of  hours  of  labor  of 
one  person  in  one  employment,  will  have  the  effect  that  such 
person  will  not  work  beyond  the  number,  for  he  is  not  apt  to 
seek  or  obtain  employment  in  another  occupation  or  estab- 
lishment for  additional  hours  of  the  same  day,  and  the  legisla- 
ture may  take  cognisance  of  that  fact  in  order  to  avoid  a 
needless  complication  of  laws. 

In  connection  with  the  statement  that  it  is  sufficient  if  the 
restrictive  measure  tend  to  reduce  the  danger,  though  not  all 
means  of  providing  against  it  are  exhausted,  mention  should  be 
made  of  the  cases  holding  it  unconstitutional  to  forbid  any 
person  to  sell  patent  and  proprietary  medicines  and  domestic 
remedies  at  retail  unless  such  person  is  a  registered  pharma- 

11  Commonwealth   v.    Hamilton    Manufacturing  Co.,  120  Mass.  383. 


138  SAFETY  AND  HEALTH.  §  150 

cist.'-  These  eases  hold  that  since  these  medicines  are  pre- 
pared ready  for  immediate  use  the  fact  that  the  seller  is  a 
pharmacist,  of  itself,  furnishes  no  protection  to  the  public 
*  *  *  ''without  some  further  regulation  as  to  inspection  or 
analysis  that  would  tend  to  exclude  from  sale  those  that  might 
be  injurious  to  health  or  something  requiring  pharmacists  to 
exercise  their  skill  and  science  in  determining  the  quality  and 
properties  of  such  as  they  sold."  Such  a  provision  would  un- 
doubtedly add  very  much  to  the  efificiency  of  the  measure, 
especially  as  the  duty  to  examine  the  medicine  sold  or  a  war- 
ranty of  its  soundness  is  not  implied/"^  and  yet  it  is  true  that 
the  skilled  pharmacist  is  more  apt  to  recognise  and  to  exclude 
from  sale  compounds  which  are  positively  harmful.  It  is  there- 
fore perhaps  too  much  to  say  that  the  public  health  is  not 
protected  in  any  manner. 

vi  150.  Measure  proportionate  to  danger.— The  restraint  must 
not  be  disproportionate  to  the  danger.  This  is  simply  an  appli- 
cation of  the  principle  that  every  exercise  of  the  police  power 
must  be  reasonable,  a  principle  long  since  enforced  as  against 
municipal  corporations,  but  also  beginning  to  be  recognised  as 
binding  on  the  legislature.  Thus  in  Toledo  &c.  R.  Co.  v.  Jack- 
sonville'^ an  ordinance  was  set  aside  requiring  a  railroad  com- 
pany to  keep  a  tlagman  at  every  street  crossing,  even  where 
traflic  was  very  light.  The  court  said  it  would  treat  the 
measure  as  if  the  city  had  all  the  powers  of  the  state  legisla- 
ture. Compulsory  vaccination  is  as  a  rule  allowed  only  where 
an  epidemic  of  smallpox  exists  or  is  threatening.'^'  And  with 
regiird  to  sanitary  re<juirements  in  houses  the  Court  of  Appeals 
of  New  York  said:  "  Kxaetions  in  the  interest  of  health  and 
safety  arr  legal  as  long  as  their  cost  does  not  exceed  what  may 
be  termed  one  of  the  conditions  upon  which  individual  prop- 
erty is  held."'« 


•2  Stale    V.    Doualilnoi),     II     .Minn,  'lid    not    n'l^nhilc   nr   control    (tio   ilis- 

74;   Noel  V,  IVo|>!c,   1K7   III.  r>H7,  58  cretion  of  the  Mn;inl. 

N.    K.   ni«.      Thf   net    of    lllinoiH   al-  i->  WohI.   v.    Knuiniicl,    I'.IS   Pa.    180, 

lonrd    llif  JKHiiu  l»y   the  State   Hoard  iJ.S  L.  H.  A.  :JL'!». 

of   I'liarmacy  of  pertnitH  for  the  wile  '■'(57  III.  37. 

of    patent    medieincH    to    any    <lcaler  '•'•  See  See.  H7,  infrn. 

under  hikIi  re«trietionH  an  they  mijjhl  "'  Health     Dejiarfinent    v.    Trinity 

deem  proper;   Imt  the  eonrl  held  the  (  Imnli,    145    N.    Y.   :\'2,   L'7    I..    H.    A. 

power  to  b«  iuvalid  bscnunc  the  law  710. 


ij  151  APPEOPEIATENESS  OF  xMEASUKES.  1;^;j 

5^  151.  Interference  with  established  economic  or  social  con- 
ditions.^'—  Where  the  i)i'()|)().se(l  measure  slronyly  al't'eets  imm)- 
iioniic  interests,  especially  by  interfering  with  established  con- 
ditions of  labor,  and  these  conditions  portend  no  immediate 
danger,  the  courts  will  not  readily  acquiesce  in  the  plea  of 
safety  or  health.  Perhaps  the  strongest  illustration  of  this 
tendency  is  to  be  found  in  the  case  of  Matter  of  Jacobs.^**  An  act 
"to  improve  the  public  health"  prohibited  the  "manufacture 
of  cigars  or  preparations  of  tobacco  in  any  form,  on  any  floor, 
or  in  any  part  of  any  floor  in  any  tenement  house"  (in  cities 
over  500,000  inhabitants),  "if  such  floor  or  any  part  of  such 
floor  is  by  any  person  occupied  as  a  home  or  residence  for  the 
purpose  of  living,  sleeping,  cooking,  or  doing  any  household 
work  therein,"  defining  a  building  occupied  by  more  than 
three  families  as  a  tenement  house.  The  act  was  declared  un- 
constitutional, the  court  saying,  "it  is  plain  that  this  is  not  a 
health  law,  and  that  it  has  no  relation  whatever  to  the  public 
health."  Assuming  the  sanitary  object  to  have  been  color- 
able, there  was  no  valid  ground  to  support  the  act,  and  the 
chief  interest  of  the  case  must  be  found  in  the  fact  that  the 
court  undertook  to  override  the  legislative  judgment,  which 
conceivably  might  have  been  based  upon  sufficient  evidence. 

§  152.    The  practice  of  medicine  and  freedom  of  science.^ ^— 

The  regulation  of  the  practice  of  medicine  assumes  the  exist- 
ence of  a  medical  science,  yet  the  freedom  of  science  would  be 
inconsistent  with  the  total  exclusion  of  one  school  of  medicine 
from  the  right  to  practice.  In  so  far  as  all  medicine  is  based 
upon  a  knowledge  of  established  natural  laws  and  facts,  at 
least  the  knowledge  of  these  facts  may  be  demanded  of  the 
practitioner,  and  those  not  having  such  knowledge  cannot  claim 
that  according  to  their  principles  it  is  unnecessary,  for  a  prin- 
ciple based  upon  ignorance  is  entitled  to  no  respect.  The  prac- 
tice of  American  legislation  gives  equal  credit  to  reputable 
medical  colleges  to  whatever  school  they  may  belong,  and  does 
not  undertake  to  control  the  methods  of  the  licensed  practi- 
tioner. It  would  not  be  competent  for  the  legislature  to  de- 
termine a  question  of  medicine  against  the  preponderance  of 
medical  opinion,  as  for  instance  by  excluding  alcoholic  liquors 

IT  §§  311-317.  i«  §§  222,  223,  249. 

18  98  N.  Y.  98,  1895. 


140 


SAFETY  AND  HEALTH.  §  153 


from  use  as  medicine.  The  fact  that  no  such  legislation  has 
been  attempted,  notwithstanding  the  insistence  of  prohibition- 
ists that  alcohol  is  not  necessary  for  medical  purposes,  strongly 
indicates  the  recognition  of  the  constitutional  limitation.^^^  The 
Supreme  Court  of  Ohio  has  declared  unconstitutional  a  statute 
re< [Hiring  for  the  practice  of  osteopathy  a  longer  course  of 
study  than  for  the  practice  of  other  forms  of  medicine,  and 
denies  the  power  of  the  legislature  to  establish  scientific  con- 
clusions adverse  to  any  school  of  medicine.^i 

ii  153.  It  has,  however,  been  held  that  the  fact  that  one 
school  of  medicine  is  not  recognised  in  forming  boards  of  ex- 
aminers does  not  in  itself  constitute  discrimination,  unless  it 
can  be  shown  that  applications  for  admission  are  improperly 
rejected.--  Some  discretion  must  in  the  nature  of  things  be 
left  to  the  state  in  selecting  examiners,  and  some  discretion 
nnist  be  exercised  by  the  examiner  in  passing  upon  qualifica- 
tions. But  the  discretion  must  be  a  fair  one  in  either  case, 
ami  the  courts  must  have  power  to  control  its  abuse.23  In 
excluding  the  eclectic  school  from  the  right  to  have  its  repre- 
sentatives act  as  examiners  under  any  circumstances,  the 
Louisiana  statute  went  to  the  verge  of  fair  discretion  if  not 
beyond  it.  The  Supreme  Court  of  Massachusetts  in  an  eai'lirr 
case^^  upiit'lil  an  act  r('([uiring  a  license  fi"om  either  the  State 
Medical  Society  or  from  the  University,  but  intimated  that  the 
vesting  of  the  power  in  the  medical  society  exclusively  might 
be  of  (h)ubtful  validity.  p]ven  the  r(M'ognition  of  two  bodii's  to 
th(?  e.\chisi(»n  of  all  others  would  now,  in  numy  states,  be  ;-e- 
ganled  ns  ereating  an  unconstitutional  privilege  or  monopoly. 

j  154.  ( '(•iircdjii^r  II,,.  i-c(,rul;iti()ii  ( » 1'  tji,.  practicc  of  inediciiie 
to  lie  within  the  police  power,  there  should  be  no  doubt  of  the 
coiistitiitioiuil   (•()mpetence  oi'   tlir    legislature   lo   regulate   any 

-" "  Wlu'n      infoHim'tit      and      iilii  -' "  I  n   :i    cnso   wIumc   it    \v;is   clcjir 

nili'il  iiicti  flifTt-r  in  tlicir  flu'oricH  llic  (rutii  the  cviflcnco  tliiil   ;i  <liHciiiiiin;i- 

Ictfiitliiliirr  liiiH  no  powt-r  to  coihIciiiii  limi  had  hcon  nia<lo  ii>;:iiiist  a  Hvslcm 

the  <>no  or  iipprovo  the  other. "    Slate  of   mcdicitie,    we   .slmiild    not    liesitrite 

I  Wft«h.  ■»'J4,  :<0  l'a<-.  7'2'.K  to  liold   tliat    tlie  hoard   liad  exceede.l 

■      V.    (Jriivctf,    {\r,    Oh.     St.  its   power."      Nel.son    v.   St.-ite   IJoard 

'JH»,  fl2  N.  K.  3U5,  nr,  I..  |{.  A.  7»1  ;  of  H.-alth,  L'l!  Ky.  L.  Hej).  4W,  Fyi)  h. 

iVopIo   vx    ri'l.    Hfale    I'.d.    Health    \.  1.'.    .\.    :\h:\;    State    l?oar<i    of    D.tilal 

'■    -  '   ti.  1JH  111.  .'■.no.  (5'J  \.  K.  H.lM.  Kxainiii.-rH  v.    I'eople,   I'Jil   111.  liL'7. 

\llopalhie    State    Boanl    &r-.    v.  -•<  Hewitt  V.  Charier,  IG  I'ick.  353, 

Fowler.  :>n  ha.  Ann.  1358,  24  8o.  809.  1835. 


§  155  PROTECTION  OF  A  CLASS.  141 

professional  treatment  of  the  sick,  though  not  "medical,"  by 
a  system  of  examination  and  licensing  not  amounting  to  ])r()- 
hibition,  whether  such  treatment  consist  in  simple  nursing, 
or  in  manipulation  of  the  body,  or  in  influences  brought  to 
bear  upon  the  mind.  And  since  the  terms  medicine,  physician, 
doctor,  M.  D.,  etc.,  have  a  well  established  meaning,  the  law 
may  clearly  prevent  their  fraudulent  use  to  indicate  the  pos- 
session of  qualifications  which  as  a  matter  of  fact  do  not  exist. 
Xor  is  there  any  decision  Avhich  denies  such  power.  Cases  in 
which  it  is  held  that  a  statute,  properly  interpreted,  does  not 
extend  to  a  certain  method  of  treatment,  furnish  no  basis  for 
the  contention  that  a  system  of  regulation  expressly  including 
that  method  would  be  unconstitutional. 

§  155.  Measures  restraining  a  class  for  its  own  protection.— 
The  Supreme  Court  of  Colorado,  in  the  decision  by  which  it 
annulled  the  miners'  eight  hour  law,^^  asserts  the  principle  that 
while  the  sanitary  power  extends  to  the  protection  of  the 
health  of  the  community  at  large,  and  even  of  the  health  of 
portions  and  classes  of  the  community,  yet  it  may  not  be  exer- 
cised so  as  to  protect  these  classes  from  their  own  acts.  "The 
reason  for  the  existence  of  the  power  rests  upon  the  theory  that 
one  must  so  use  its  own  as  not  to  injure  others,  and  so  as  not 
to  interfere  with  or  injure  the  public  health,  safety,  morals 
or  the  general  welfare.  How  can  one  be  said  injuriously  to 
affect  others,  or  interfere  with  these  great  objects,  by  doing  an 
act  which  confessedly  visits  its  consequences  on  himself  alone? 
and  how  can  an  alleged  law  that  purports  to  be  the  result  of  an 
exercise  of  the  police  power,  be  such  in  reality,  when  it  has  for 
its  only  object,  not  the  protection  of  others  or  the  public  health, 
safety,  morals  or  general  Avelfare,  but  the  welfare  of  him  whose 
act  is  prohibited,  -when,  if  committed,  it  will  injure  him  who 
commits  it  and  him  only?" 

It  is  true  that  the  police  power  does  not  undertake  to  protect 
the  individual  against  his  own  acts,  partly  because  that  would 
involve  an  inquisitorial  control  over  private  life  and  conduct 
both  intolerable  and  unenforceable,^^  partly  because  the  police 
power  ought  not  and  is  not  intended  to  be  a  substitute  for 
individual  self-control  and  responsibility,  but  finds  its  proper 
sphere  in  guarding  against  evils  and  dangers  beyond  th(^  con- 

25  Re  Morgan,  26  Col.  415,  47  L.  -«  See  Sec.  453-455,  infra,  Liberty 
K.  A.  52.  of  Private  Conduct. 


142  SAFETY  a>;d  health.  §  155 

trol  of  him  whom  they  threaten.  The  right  to  choose  one 
course  of  action  even  to  the  extent  of  incurring  risks,  where 
others  are  not  concerned,  is  a  part  of  individual  liberty.  This 
principle  can  be  traced  through  the  whole  of  our  police  legis- 
lation, Avhich,  e.  g.,  would  not  assume  to  prescribe  for  the 
individual  affected  with  a  disease  which  is  not  contagious  a 
specific  course  of  medical  treatment.  If  individuals  are  for- 
bidden to  do  acts  primarily  dangerous  to  themselves  on  rail- 
roads, in  sports,  etc.,  it  is  either  because  even  an  individual 
accident  may  disturb  or  endanger  the  general  traffic,  or  be- 
cause—in the  case  of  sports — the  exhibition  of  dangerous 
feats  may  amount  to  a  public  nuisance. 

It  is,  however,  a  fallacy  to  transfer  this  argument  from  the 
individual  to  a  particular  class,  and  to  say  that  the  police 
power  has  no  business  to  protect  the  class  against  its  own  acts. 
It  is  conceded  by  the  Supreme  Court  of  Colorado  that  the  in- 
terest of  a  class  may  constitute  a  public  interest,  that  is  to 
.say,  an  interest  of  sufficient  magnitude  to  make  itself  felt 
throughout  the  community.  If  then  the  health  of  the  class  is 
impaired  1)\'  long  hours  of  work  under  unsanitary  conditions, 
a  public  interest  exists  which  may  set  the  police  power  in 
motion.  If  the  employer  had  absolute  poAver,  he  might  be 
constrained  for  the  benefit  of  the  class,  as  he  may  be  and  is 
constrained  to  adopt  sanitary  and  safety  arrangements  in  mine 
or  factory,  and  it  is  noteworthy  that  the  Supreme  Court  of 
tin-  I'niled  States  recognises  in  the  limitation  of  hours  of 
lalior  i)riniarily  a  restraint  upon  the  employer:  ''The  pro- 
prietors lay  (jown  llu'  rules  and  the  lal)orers  are  practically 
constrainiMJ  to  obey  them."-"  However  even  if  we  regard  the 
restraint  as  being  laid  upon  the  employee,  it  is  not  true  that 
t-acli  ('iiipioycc  is  protected  against  his  own  aets.-'^  In  reality 
the  law  imposes  the  restriction  npon  any  one  member  on  behalf 
of  all  othci-s,  it  heing  well  imdei'stood  that  if  a  portion  of  a 
class  jire  willin^r  to  accept  nns;ini1;ii\v  conditions  competition 
will  force  others  to  do  the  lil<e,  and  that  this  |)ortion  must  be 
rcHtrained  Tor  the  henelit  of  the  chiss  as  ;i  whole.  Of  course 
.such  legislntion  must  ruid  its  snppoil  in  llic  re(piireiiienls  of 
health,    not    in    llie    inconveniences   of    Iegi1ini;ile    coni|)etition. 

-•7  lloldi-n  V.  Ilnrily,  lOit  I'.  S.  'MW,  lliiil  he  may  not  vviiivo  tlic  benefit  of 
.'«»7,  llic   iirt.      Short    V.    Bullion    &c.    Co. 

a»Tbin  also  uppcurH  from  the  fact     (Utsih),  57  Pac.  7'JO. 


155 


PROTECTION  OI-'  A  CLABS. 


143 


The  same  apparent  restraint  uiH)n  each  one  for  his  own  benefit, 
which  is  in  reality  a  restraint  for  the  benefit  of  others,  under- 
lies the  legislation  forbidding  gainful  occupation  on  Sunday. 2" 


27  The  futility  of  stretching  the 
right  of  individual  liberty  and  nar- 
rowing the  scope  of  legislative  power 
by  such  decisions  as  that  in  the  Mor- 
gan case  is  shown  by  the  facility 
with  which  they  may  be  overridden 
by  constitutional  amendment.  Un- 
doubtedly in  consequence  of  that  de- 
cision, the  legislature  of  Colorado  by 


resolution  of  March  14,  1901,  sub- 
mitted an  amendment  to  the  consti- 
tution permitting  the  legislature  to 
establish  a  compulsory  eight-hour 
day  in  any  branch  of  industry  or 
labor  that  the  general  assembly  may 
consider  injurious  or  dangerous  to 
heallh,  life  or  lind).  This  amend- 
ment was  adopted  in  1902. 


CHAPTER  VI. 

PUBLIC  ORDER  AND  COMFORT. 

AUTHORITY  EXERCISING  THE  POWER.     §§156-159.1 

§  156.  Municipal  ordinance  power.— This  field  is  almost  alto- 
gether covered  by  muuicipal  and  other  local  regidations  under 
delegation  from  the  state.  The  limitations  on  the  police  power 
and  the  limitations  on  the  municipal  ordinance  power  are  there- 
fore not  always  clearly  distinguished.  A  power  might  be  de- 
nied to  tlie  inferior  authority  and  .yet  be  conceded  to  the  state. 
'I'll"  power  may  be  denied  because  it  is  not  delegated,  or  be- 
eause  superseded  by  the  exercise  of  state  power  or  because 
exerci.sed  in  an  unreasonable  and  oppressive  manner.  A  rea- 
sonable and  customary  regulation,  though  not  within  any  of 
the  specific  clau.ses  of  the  municipal  charter,  will  generally  be 
snj»ported  under  the  general  welfare  clause,  where  the  charter 
contains  one,  or  under  the  power  to  abate  nuisances,  Avhich  is 
hardly  ever  wanting;  yet  it  has  been  held  in  Ohio  that  only  a 
specific  power  will  justify  an  ordinance  prohibiting  the  run- 
ning at  larire  of  a ninuils,^  — contrary  perhaps  to  the  prevailing 
doctrine.-' 

!^  157.  Concurrence  of  local  and  state  authority.— The  same 
ai-t  iii.iy  lir  punislialilf  iindi'i-  state  law  and  municipal  ordi- 
nanee.  and  a  great  many  forms  of  nuisance  and  disorderly 
e(»nduet  specifically  defined  ])y  oi'dinance,  are  covered  by  the 
rule  of  the  common  or  statutory  ei-iiniiial  law  nuiking  a  common 
ntiisance,  disorderly  conduct,  of  breach  oi"  Ihe  peace,  a  pul)lic 
ofTcnse.  The  samt!  act  may  he  punished  in  its  jnore  general 
Hs|)cct.  as  an  olVcnse  against  state  polic\,  hy  the  state,  in  its 
more  hieal  aspect,  as  an  inuiiediatc  luiisance,  l)y  local  authority; 
HO  thp  Htatutory  crime  of  prostitution  or  oF  keeping  a  house  of 
ill  fame  nuiy  l)y  muriicip;il  ordinance  he  declared  to  l)e  disor- 

»  H<'««  Horr  &  FfomiH  .Mtinicipiil  I'n  Icri  L'fiH;  Kiioxvillo  v.  Kinp,  7  Lea 
lire  Ordinuru-rH,    1HH7.  (Tcnn.)  441;  ('oclinuic  v.  FroHlliurfj, 

JColliiiH  V.  HiiJ.'h.  IH  Oliin  .TJ3.  SI    Md.   .^4 ;    II:it,'crs1ii\\ii   v.    Witiiicr, 

aromraonwriillh  v.   Fi.-an,  14  (iray     M  M-1.  L'lCJ,  :!'.»  I;.  1{.  A.  (M'.t. 
ftJI;   Coinmonwrultli   v.  ('iirfi«,  it   A! 

144 


§  158  MUNICIPAL  ORDINANCES.  I45 

derly  conduct.**  A  positive  regulation  by  the  state  will  bar 
conflictino;,  but  not  necessarily,  unless  intended  to  be  exclusive, 
additional,  regulations  by  the  city;  each  may  be  directed 
against  a  different  evil  or  danger.  Thus  a  state  license  for 
peddling  does  not  contemplate  the  occupation  of  a  street  for 
a  temporary  stand  from  which  to  sell  goods,  and  this  may  be 
prohibited  notwithstanding  the  state  license.^ 

§  158.  Reasonableness.— The  requirement  of  reasonableness 
is  so  general  in  its  nature  that  it  allows  the  courts  to  exercise 
a  very  efficient  control  over  ordinances,  without  being  imder  the 
necessity  of  formulating  in  each  case  a  principle  which  would 
be  a  guide  for  other  cases.  The  views  of  courts  as  to  what  is 
reasonable  and  what  is  oppressive  naturally  differ,  and  while 
it  has  been  said  that  in  doubtful  cases  the  judgment  of  the 
municipal  authorities  will  be  conclusive  upon  the  courts,"  yet 
doubts  are  in  reality  often  resolved  against  the  validity  of  the 
exercise  of  the  power,  so  where  it  has  been  held  that  the  pro- 
hibition of  the  distribution  of  handbills  on  the  streets  is  un- 
reasonable.' It  is  manifestly  impossible  to  mark  with  precision 
the  point  at  which  acts  and  conditions  begin  to  be  disorderly 
and  offensive,  and  many  acts  which  are  under  normal  circum- 
stances objectionable,  may  in  an  emergency  be  proper  or  neces- 
sary, and  ordinances  are  not  always  penned  with  such  skill  and 
learning  as  to  make  provision  for  the  emergency.  Ordinances 
have  been  declared  illegal  because  their  language  allowed  an 
interpretation  which  would  cover  harmless  acts,  or  which  failed 
to  make  exceptions  that  might  under  circumstances  become 
necessary.^  It  seems  that  in  such  cases  it  would  often  bf  pos- 
sible to  save  an  ordinance  by  reading  into  it  a  limitation  or 
exception  conformable  to  its  real  spirit  and  intent.'* 

4  People  V.  Miller,  38  Hun  82.  Crim.   App.   448,   4'J    L.   E.    A.   587, 

5  Commonwealth  v.  Ellis,  158  Mass.  curfew  ortliuance ;  Hechiuger  v. 
555;  Commonwealth  v.  Lagorio,  141  ilaysville,  22  Ky.  L.  Eep.  486,  49 
Mass.  81;  Commonwealth  v.  Fenton,  L.  R.  A.  114,  prohibiting  conversa- 
139  Mass.  195.  tion  with  prostitutes;  State  v.  Hunt- 

cLaugel   v.  Bushnell,   197   111.   20,  er,   106  N.  C.   796,   8  L.  R.   A.   529. 

63  N.  E.  1086;  Vanderhurst  v.  Thol-  three  or  more  persons  on  the  stroot 

eke,  113  Cal.  147;  North  Chicago  R.  to  move  on  whenever  so  ordered. 
Co.  V.  Lake  View,  105  111.  207.  '■>  People  v.   Rosenberg,   138  N.  Y. 

7  People  V.  Armstrong,  73  Mich.  410,  34  N.  E.  285 ;  Commonwealth  v. 
288    2  L.  R.  A.  721.  Plaisted,  148  Mass.  375,  2  L.  R.   \. 

8  Ex    parte    McCarver,    39    Texas 


146  PUBLIC  ORDER  AND  COMFORT.  §  159 

ji  159.  Order  and  freedom  of  commerce.— A  power  exercised 
Id  jrood  faith  for  i)ublic'  order  and  eonifort  Avill  be  recognised 
by  the  United  States  though  it  may  bear  on  agencies  of  com- 
merce. Thns  an  ordinance  of  the  city  of  Chicago  was  uphold 
which  provided  that  bridges  across  the  Chicago  River,  a  navi- 
gable water  of  the  l.'nited  States,  should  not  be  opened  for 
passage  of  vessels  diu-ing  one  hour  in  the  morning  and  one 
hour  in  the  evening,  and  that  during  the  daytime  it  should  be 
opened  for  not  longer  than  ten  minutes  at  a  time,  and  then  to 
be  closed  for  fully  ten  minutes  to  allow  passengers  to  cross. 
"The  local  authority  can  better  direct  the  manner  in  which 
they  shall  be  used  and  regulated  than  a  government  at  a  dis- 
tance. It  is.  therefore,  a  matter  of  good  sense  and  practical 
wisdom  to  leave  their  control  and  management  with  the  state. 
Congress  having  the  poAver  at  all  times  to  interfere  and  super- 
sede their  authority  whenever  they  act  arbitrarily  and  to  the 
injury  of  connnerce.''^"  So  a  state  law  was  sustained  forbid- 
ding the  moving  <>f  freight  trains  on  Sundays." 

POWKK  OVER  E.NCKOAClliMENTS  ON  STREETS.      §§160-164. 

.i  IGO.  Fee  and  easement.  — Streets  and  olln'i-  public  places 
are  real  estate  ;ind  as  sueh  sul\jeet  to  pr()i)rietary  rights.  The 
pulilic  right  in  tlie  street  may  be  acquired  by  reservation,  pur- 
chase, dcflieation  or  condemnation,  and  it  may  be  either  an 
casement  or  a  fee.  Where  the  fee  remains  in  the  adjoining 
owner,  he  may  retain  certain  rights  in  the  soil  unall'eeted  l)y 
v|i t  uses,  and  be  ]ii;iy  be  entitled  1o  additional  compensation 

14:^,  an  order  of  ii   l)t>jir<l   of   police  "All   hiws  should   receive  a  sensible 

forbidding   persoiiH    to   Hiufj   or    pl;iy  coiistrnclion.      (ieiieral    terms    should 

or   perform   in   the  streefH  or   public  be  ho  limited   in  their  application  as 

plaepfi,  etc.;   the  conrt   said  "Nor  is  not    to   lc;iii    In   injustici',   oppression, 

the  rc'iiMonableni'HH  of  the  rules  to  be  oi    an    rd)surd    c(uise(|ueiK'e.       It    will 

'■-••••I    by    thc!ir    possible   application  al\v;iys    ther<'fore    be    presunuil    Ihat 

reme  <'UHes  ns  for  instance  sinjj-  the    lejjislaturc    intended    exceptions 

in);  or  playinf;  (in  a  low  time  tuit  in-  lo    its    l:ui;;ua^e,    wliich    would    :i\oid 

tondecl  to  be  lieard  by  others)    for  a  risults   of   this   chariicter.      The    rea- 

iibort  time  in  the  street  or  phicc  not  son  of  the  law  shoidd,  in  suih  cast's, 

cx-eiipied    with   dwellinjfs.      No   police  prevail     over     its     letter."       United 

nilcii  or  ri'KiihitionM  iiro  to  be  tested  States  v.  Kirby,  7  Wall.  4X2. 
in    this    manner;    and    if    su<di    chm«'  '"  Kscnnaba    &c.    Co.    v.    '"hicn^jo, 

were    to    prcficnt    itself    perhaps    the  107    IJ.   S.   (]7H,    18S3;    Chicago    Ucv. 

nile    might    by   conntniction    not    Ix-  Coile  ISO?,  Sees.  H»9-208, 
dnemed    to    inrlude    r               he    same  "  llenriin^ton    v.    (Jeorjjia,    1(!:{    IT. 

nile   tthnnld    be    af>pb< 'I    m   statutes:  S.  .'S'.t'.t. 


§  161  ENCEOACHMENTS  ON  STREETS.  I47 

for  an  increase  in  the  public  easement  by  novel  and  burrlon- 
some  public  uses.^^  n  has  also  been  intimated  that  the  original 
owner  may  dedicate  a  highway  c«w  onere,  i.  e.,  subject  to  an 
existing  encroachment,  as  for  instance  trees. ^-"^  But  at  least  as 
far  as  city  streets  are  concerned,  the  public  easement  is  neces- 
sarily so  comprehensive,  if  it  is  to  be  adequate  to  the  complex 
uses  of  soil  and  surface  for  improvements  deemed  essential  to 
modern  municipalities,  that  the  difference  between  fee  and 
easement  has  become  more  and  more  technical  and  insubstan- 
tial, and  the  city's  rights  against  the  abutter  are  for  most  pur- 
poses the  same  whether  the  fee  is  in  the  city  or  in  the  abutter. 
"On  the  general  question  as  to  the  rights  of  the  public  in  a 
city  street  we  cannot  see  any  material  difference  in  the  prin- 
ciple with  regard  to  the  extent  of  those  rights,  whether  the 
fee  is  in  the  public  or  in  the  adjacent  land  owner,  or  in  some 
third  person.  "1^ 

§  161.  Control  of  public  use.— In  placing  a  structure  upon 
or  under  or  over  the  street,  the  adjoining  owner,  therefore, 
although  he  may  have  a  technical  legal  title  to  the  soil,  is 
necessarily  subject  to  any  restraint  required  by  public  street 
uses.i^  The  city  controls  the  street  in  trust  for  the  public, 
and  has  no  inherent  right  to  surrender  or  impair  that  trust. 
The  legislature  of  the  state  which  represents  the  public  at  large 
and  controls  the  trust  upon  which  streets  are  held*  (subject  to 
private  easements  of  light,  air  and  access),  may  either  grant 
directly  the  right  to  occupy  part  of  the  street,  as  for  instance 
for  door-steps,!"  or  may  authorise  the  city  to  grant  to  the  ad- 
joining owners  rights  in  the  streets;  but  an  express  grant  of 
such  power  is  unusual.^" 

12  See  as  to  these  rights  Dillon  the  coustitution  the  legislature  can- 
Munic.  Corp.,  Sees.  687-704a;  also  not  grant  the  exclusive  use  of  a 
§§  509   510,  infra.  street  to  an  individual  must  be  un- 

13  State  V.  Vineland,  56  N.  J.  dorstood  with  reference  to  a  grant 
Law   474    23  L.  E.  A.  685.  which  makes  the  street  useless  to  the 

iiBarney  v.  Keokuk,  94  U.  S.  324,  abutters,  and  not  as  forbidding  the 

1877;  Dillon,  Sees.  689-699.  grant   of   reasonable  privileges;    the 

15  Allen  v.  Boston,  159  Mass.  324;  decision  seems  to  anticipate  the  doc- 
McCarthy  v.  Syracuse,  46  N.  Y.  194.  trine  of  the  New  York  Elevated  E. 

v«  Gushing    v.    Boston,    122    Mass.  Co.   cases.      Dillon,   Sec.    660,   refers 

173,   124  Mass.  434,   128  Mass.   330.  to  it  as  an  extreme  view. 
The'  remarks  in  People  v.  Carpenter.         it  instance  of  power  to  grant  en- 

1  Mich.  273,  to  the  effect  that  under  croachraents  expressly  given  to  city: 

10 


148 


PUBLIC  OEDER  AND  COMFORT. 


§162 


§  162.  Customary  encroachments.— What  then  is  the  legal 
status  of  the  eneroaohments  so  commonly  found  in  city  streets: 
signs,  awnings,  posts,  porches,  stands?  If  they  obstruct  the 
street,  diminish  the  space  available  for  walking,  or  impede 
traffic,  they  are  nuisances  subject  to  indictment  and  abate- 
ment,'* and  it  is  not  necessary  that  the  comfortable  enjoyment 
of  the  highway  should  be  interfered  with  materially.''-^  Some 
decisions  require  for  criminal  prosecution  more  than  a  technical 
encroachment.  A  liberty  pole  erected  in  the  street,-*^  a  vault,-' 
an  opening  in  the  sidewalk  in  front  of  a  cellar  window  for 
light  and  ventilation,  usual  and  customary  in  the  city,--  a  plat- 
form with  steps  for  approach  to  a  building  within  the  area 
generally  used  for  that  purpose, ^3  stepping  stones  for  car- 
riages.-^  and  a  wooden  awning  over  a  sidewalk-'^  have  been 
liild  not  to  be  nuisances  per  se.  Perhaps  in  these  cases  a  license 
from  the  city  could  have  been  implied  from  custom.^^ 

);  163.  Power  to  prohibit  and  regulate.  — \Yhere  the  city,  as 
is  usuall\-  tlif  case,  has  power  to  regulate  the  use  of  the  streets, 
or  to  declare  and  abate  nuisances,  or  to  prevent  and  remove 
encroachments  and  obstructions,  it  may  by  ordinance  prohibit 
all  structures  in  any  way  impairing  the  public  easement;  and 
an  cxprrss  power  to  prohibit  ma}'  be  interpreted  as  re({uiring 


Kirtianrl  v.  Mayor  of  Macon,  66  Ga. 
385;  Daly  v.  Georgia  &c.  R.  R.  Co., 
H(»  (;a.  7St:^. 

•  "Projecting  steps,  Hyde  v. 
County  of  Middlesex,  2  Gray  267, 
1S54;  Cinw.  v.  Dlaisdcll,  107  Mass. 
'SM,  1H71;  Pettis  v.  .Inliiison,  r)6  Ind. 
I'M,  1S77;  hay  windows,  State  v. 
K«in,  61)  N.  n.  122;  stalls  and  cases 
for  ineri'handise,  Lavery  v.  llanni- 
gan,  20  .1.  &  S.  UV.i.  ISKf);  fmw.  v. 
Wcntworfli,  Hrightly  (Pa.)  iJlH, 
1823;  Idling  v.  Americus,  Hfi  Ga.  7r)fi, 
IWM. 

•  •Htati-   V.    lirrdetla.   7.H    Ind.    iMf). 
><•  Alleghany  v.  /irnnicrtnan,  •.•">  Pa. 

Hiatf,  2H7,  IHSn. 

»«  Dillon.  Hoc.  nm>,  State  v.  Ho- 
bnkrn,  33  N.  .1.  I..  2H0;  West  Chi- 
cago .Manonic  Afwociation  v.  Crdin, 
192  III.  210;  Denhong  v.  New  York, 
OH   N.  K.  880. 


■•;••!  King  V.  Thompson,  87  Pa.  State 
365,  1878. 

•■!3  Murphy  v.  Leggett,  164  N.  Y. 
121,  58  N.  E.  42. 

2*  Robert  v.  Powell,  168  New  York 
411,  61   N.  E..699. 

-•'' TT.Mwkiiis  V.  Sanders,  45  Midi. 
4itl. 

2"  Nelson  v.  Godfrey.  12  111.  20. 
Switch  tracks  connecting  a  railio.id 
with  a  factory  or  warehouse,  tlioiigh 
paid  for  l)y  tiie  owner  of  tiie  latter, 
are  ill  Illinois  lieM  to  he  part  of  the 
puhlii;  road,  and  justi(ie<l  on  that 
theory.  Truesdjile  \-.  l'(>oria  (irap<' 
Sugar  Co.,  101  III.  561  ;  Chicago  Dock 
C.inal  Co.  V.  Garrity,  115  III.  155, 
3  N.  K.  44S;  McG:iini  v.  I'.-ople,  l!tl 
111.  526,  62  \.  v..  041  ;  People  v. 
DIocki,  203  III.  363,  67  N.  E.  809. 


e  163  ENCEOACHMENTS  ON  STREETS.  149 

positive  action  by  the  city  before  the  encroachment  can  be 
dealt  with  as  illegal,  so  in  the  matter  of  trees  ;2"  but  where  the 
charter   recognises   the   customary   existence   of   technical   en- 
croachments such  as  awnings,  and   gives  power  to   regulate 
them,  an  absolute  prohibition  may  be  held  to  be  unreasonable.^** 
But  the  city  may,  nnder  the  power  to  regulate  the  nse  of  streets 
and  sometimes  under  express  power  to  regulate  the  use  of  side- 
walks and  structures  thereunder,  or  to  regulate  their  use  for 
signs,  posts,  awnings,  etc.,  authorise  customary  encroachments, 
and  such  authority  will  then  remove  the  indictability  of  the 
structure.2»    Such  authority  may  be  made  to  depend  upon  com- 
pliance with  prescribed  conditions,  and  the  disregard  of  such 
conditions  may  then  make  the  structure  a  nuisance,^^  but  the 
city  cannot  authorise  a  structure  that  would  materially  incom- 
mode public  traffic  f^  and  above  all,  under  its  ordinary  powers 
of  regulation  the  city  cannot  part  with  proprietary  rights,  and 
the  authority  which  it  gives  is  in  the  nature  of  a  license  sub- 
ject to  revocation.32    But  it  has  also  been  held  that  the  revoca- 
tion of  a  license,  if  not  called  for  by  some  public  need,  will  be 
treated  as  oppressive  and  therefore  illegal,  before  the  licensee 
by  the  use  of  the  structure  for  a  reasonable  time  has  been 
reimbursed  for  his  outlay  in  erecting  the  same  ■,^^  after  twenty 
years  enjoyment  a  full  return  for  the  outlay  may  be  presumed 
to  have  been  obtained.s^    a  grant  of  more  than  a  license,  so  the 
grant  of  a  franchise  to  occupy  the  street  with  tracks,  poles,  etc., 
requires  express  legislative  authority.^^ 

The  power  over  encroachments  on  water,  suchi  as  piers  and 
bridges,  is  governed  by  the  same  principles  as  that  over  street 
encroachments. 2^ 

27  White  V.  Godfrey,  97  Mass.  472,  32  Council  of  Keading  v.  Common- 

1867;   Bliss   v.   Ball,   99   Mass.   597,  wealth,   11  Pa.   State   196,   1849;    in 

1868;  Cross  v.  Morristown,  18  N.  J.  tlus    case    a    legislative    license    was 

Eq   305   1867  li^ld  to  be  revocable;  ex  parte  Tay- 

28Hisey  v.*  Mexico,   61    Mo.   App.  ^or,    87   Cal.    91,    1890;    Hibbard   v. 

248,  1894;   see  also  State  v.  Higgs,  ^^l^i^ago,  173  111.  91,  1898. 

126  N.  C.  1014,  48  L.  R.  A.  446.  ^^  Town  of  Spener  v.  Andrew,  82 

29  Everett  v.  Marquette,  53  Mich.  la.  14,  12  L.  R.  A.  115. 

450,  1884;  ex  parte  Taylor,  87  Cal.         34  Augusta  v.  Burum,  93  Ga.  68, 
91,  1890;  Dillon,  Sees.  732-734.  26  L.  R.  A.  340. 

30  Pedriek  v.  Bailey,  12  Gray  161,         35  See  Sec.  658,  infra, 

2g5g^  30  Mayor  of  New  York  v.  Cunard 

31  Pettis  v.  Johnson,  56  Ind.  139.     S.     S.     Co.,     61     Hun     346;     State 


150  PUBLIC  ORDER  AND  COMFORT.  §  164 

^  164.  Protection  of  streets  from  injury,  etc.— In  protecting 
streets  and  public  grounds  from  injury  and  defilement  the  city 
does  not  act  in  its  capacity  as  a  corporate  owner  of  the  fee  of 
the  street,  but  in  the  exercise  of  the  delegated  power  to  regu- 
late the  public  use,  the  regulation  here  consisting  in  such  meas- 
ures as  will  maintain  public  use  and  enjoyment  to  the  utmost 
extent ;  therefore  the  city  may  protect  trees  from  injury,  even 
as  against  the  acts  of  the  adjoining  owner  who  owns  the  fee 
of  the  street  and  therefore  the  tree  itself.^^  The  city  should 
also  have  power  to  prevent  the  distribution  of  handbills  if  it 
is  matter  of  experience  that  the  handbills  will  be  thrown  away 
and  the  street  will  thereby  become  littered  with  pa»per ;  it  has, 
however,  been  held  otherwise  in  ^Michigan.^^ 

THE  COMMOiX  RIGHT  TO  USE  PUBLIC  PLACES.     §§  165-170. 

^  165.  Natiure  of  common  use.-'''— The  adjoining  owner  who 
encroaches  upon  the  street,  however  slight  the  encroachment 
may  be,  is  at  best  a  licensee,  and  the  limitations  or  conditions 
(lualifying  the  license  cannot  be  regarded  as  impairing  any 
right  of  property  or  liberty  protected  by  the  constitution.  The 
coiniium  use  of  the  streets  is,  however,  far  more  than  a  license. 
This  use  is  of  the  essence  of  the  purpose  for  which  the  street 
exi.sts,  for  which  it  has  l)een  dedicated,  or  for  which  the  power 
of  eminent  ilomain  has  been  exercised,  and  it  enters  therefore 
into  the  very  nature  of  the  public  highway,  and  the  use  is  so 
essential  to  the  functions  of  social  jiml  economic  life  that  the 
full  enjoyment  of  individual  libcrly  and  property  cannot  be 
eonceiveil  witlioul  il.  It  must,  therefore,  be  looked  upon  as 
<>n<'  of  the  constitulional  rights  of  the  individual,  in  so  far  as 
the  iDdividual  is  p;ir-t  of  the  geni'r;il  mass  ol'  flu'  people  which 
is  rlrsiL'ii.'itiMl  iis  the  |)iil)lie. 

>;  166.  Power  to  vacate  highway.  — Tli is  rinht  wllaehes  to  the 
liighway  while  it  is  a  high\v;iy,  jiiul    is  not  inconsistent  with 

V.    InhahitnntH   nf    Kropporf,    13    Mo.  ImuHt's,  if  tlicy  arp  likply  to  bo  taken 

1J»H,    1857;    rc'«)iilc  V,   VaiidcrJiilt,   .'IS  up  by  tliP  wind  ami  Hcattored  in  the 

Hnrb.    'JH'J,    IHH'J.      Hcp    55    lOii-lOS,  HtrcptH.      IMiiladpIphia    v.    BralxMider, 

infra.  -'"M    I'a.    •'■)74,   5H    L.    K.    A.    JL'O,    f)! 

a^HiikcT  V.   .\..rmal,  Ml    111.    jOH.  Atl.    :i71. 

3»  I'ooplp   V.   AniiHtroii);,    7'.\    .Midi.  ■'"' DiHtiiictidii  bctwi-cn  ((iiiiiiKiii  usu 

2H8,  2   h.   K.   A.   7-1.     Hpp  px    partp  and   cxi'IiiHivc  poBHCSHion   pr)intP(l  out 

Ciminpllo,  62  Cnl.  Ti^H.     TIip  pity  may  in   Ht,    LoiiIh  v.   W.  U.   TcI.   Co.,   148 

forbid     tlip    throwing    of     liandbillH,  U.  8.  S>li,  pp.  (♦MOO. 
<•'■•      ;•■♦■•    »'■■     ^'"tibuic*    of    j)rivatp 


§  167  POWER  OVER  USE  OF  STREETS.  Jf,! 

the  right  of  the  organised  community  to  vacate  or  discontinue 
a  street.  For  such  vacation  proceeds  upon  the  theory  that  one 
particular  highway  is  no  longer  required  for  public  use,  and  so 
long  as  sufficient  other  accommodation  of  traffic  and  passage 
exists,  the  right  to  the  common  use  of  streets  remains  practi- 
cally unimpaired.  It  is  another  question— which  need  not  be 
further  discussed  here— whether  the  delegated  power  of  a 
municipality  is  sufficient  to  vacate  a  street,  and  in  how  far 
the  special  easement  of  an  abutter  qualifies  the  exercise  of  the 
public  right.'**' 

§167.  Power  over  use  of  street  not  absolute."* i— The  Su- 
preme Court  of  Massachusetts  has  said  that  the  right  to  put 
an  end  to  the  dedication  to  public  use  includes  the  lesser  stej) 
of  limiting  the  public  uses  to  certain  purposes,  and  it  has 
likened  the  power  of  the  public  over  the  highway  to  that  of 
the  owner  over  the  private  house.'*^  The  case  before  the  court 
was  one,  not  of  common,  but  of  special  use  of  a  public  park 
(public  speaking  on  the  Boston  Commons)  ;  and  with  regard 
to  the  common  use  of  streets  the  statement  cannot  be  accepted 
as  correct;  for  the  power  to  abolish  the  public  use  altogether 
is  one  which  in  the  nature  of  things  cannot  be  exercised  with 
regard  to  all  streets  alike ;  hence  it  has  in  reality  no  existence 
in  the  same  sense  as  the  asserted  right  to  limit  public  uses,  and 
the  argument  from  the  greater  to  the  lesser  is  therefore  unwar- 
ranted ;  the  right  of  the  private  owner  to  control  the  use  of  his 
house  is  unlimited,  and  to  concede  the  like  power  to  the  legis- 
lature would  be  equivalent  to  the  recognition  of  a  despotic 
power  over  every  act  which  may  be  done  in  the  public  streets 
without  regard  even  to  the  requirement  of  due  process  or  of 
equality.  It  is  obvious  that  such  power  cannot  be  claimed 
under  our  system  of  government. 

The  sound  principle  is  that  every  restraint  upon  the  common 
use  of  streets  must  be  justifiable  upon  established  principles 
of  government,  and  cannot  be  referred  simply  to  the  imcon- 
troUed  exercise  of  proprietary  discretion.-*  •'  This  follows  from 
the  fact  that  the  highway  was,  and  could  have  been,  acquired 

40  Dillon,     Sec.     666,     Chicago     v.     of  bridge.   Coster  v.  Albauy,  43   N. 
Burcky,  158  111.  103,  42  N.  E.  178;     Y.  399. 
Meyer   v.    Teutopolis,    131    III.    552;         4i  See  §§  641-644. 
Polak  V.  Sau  Francisco  Orphan  Asy-         *-  Commonwealth     v.     Davis,     162 
lum,  48  Cal.  490.     Case  of  removal     Mass.  510. 

43  See  §  174  and  §§  641-644,  infra. 


152 


PUBLIC  OEDER  AND  COMFORT. 


§168 


by  the  public  only  for  its  use  as  such,  and  that  the  proprietary 
right  of  the  organised  community  is  therefore  qualified  by  an 
easement  of  use  in  favor  of  the  unorganised  public  of  which 
every  individual  is  a  representative. 

§  168.  Extent  of  common  use.— The  extent  of  public  power 
is  therefore  determined  by  the  nature  of  the  right  of  common 
use,  and  by  the  obvious  conditions  which  publicity  imposes  on 
the  acts  of  the  individual. 

The  common  use  of  the  street  consists  in  passing  along  the 
street  for  purpose  of  business  or  pleasure,  on  foot  or  by  ve- 
hicles. It  does  not  include  the  use  of  the  street  as  a  play- 
ground,-*^  or  as  a  place  on  which  animals  may  stray.^^ 

It  is  especially  to  be  noticed  that  the  use  of  private  vehicles 
constitutes  a  common  right,  not  subject  to  police  restriction  ex- 
cept for  cause.  A  license  may  be  exacted  for  vehicles  as  a 
revenue  measure,  where  there  is  no  constitutional  limitation  of 
the  taxing  power  in  this  respect,  and  may  be  imposed  by  local 
authority,  where  the  pov.'er  has  been  duly  delegated;'*^  or  as  a 
police  measure  where  the  vehicle  is  by  reason  of  weight  apt 
In  injure  the  roadl)ed  ;"*"  but  except  for  purposes  of  safety  the 
mere  power  to  regulate  the  use  of  the  streets  will  not  authorise 
a  i-estrietion  by  the  imposition  of  n  lieense  fee  ui)on  the  use  of 
the  bicycle,"'*'  or  of  other  priv;ite  veliicles."''' 


"Illinois  City  Aft  V.,  Sec.  1,  No. 
92. 

«8ee  note  .39  L.  K.  A.  tl47.  Wlicrc 
animulH  are  fouml  niniiiniij  ;it  lar;^<' 
the  law  may  authorise  their  seizure, 
and,  ujfon  proper  notice,  their  sale. 
IjK'k  of  notice  was  lielil  fatal  in  New 
York,  Koekwell  v.  Ncarinjj,  .35  N.  V. 
l»ut  tlie  i|<'fe<'t  in  the  law  was 
•.iii.-.c<|uently  cured  and  the  act  the,' 
u|dn'ld.  Canijihcll  v.  I-^vans,  4^)  N. 
Y.  356;  Cook  V.  (ir.'KK,  40  N.  V.  t.iit, 
where  it  is  said  tlial  it  is  iniMiatcri.-il 
wliither  tho  seizure  is  for  a  public  er 
private  wronj;.  In  .Mic)ii(;an  it  w:is 
upwially  said  that  the  strayinjj  of 
lals  eoiistitiilcd  a  puldic  uricv 
.  ■.  Cnnipau  v.  I^angley,  TUt  Mich. 
451,  83  Am.  Kej..  114,  Compare 
Donovan  v.  VieksluirR,  2ii  Miss.  1347, 
I-'',    "ifh    Andcrdon    v.   Locke,   64 


Aliss.  283,  and  see  Creer  v.  Down- 
ey  (Ariz.),  (i1    T>.  R.  A.  408. 

'"  Tondinsiiii  \..  Indianapolis,  144 
In. I.  142,  36  L.  R.  A.  413;  Terre 
Haute  V.  Kersey,  l.lit  lud.  ;?()(),  (5 1 
X.  !•:.  4(iit;  Ft.  Smith  v.  Scruggs, 
7(/  Ark.  549,  58  L.  R.  A.  921,  69  S. 
W  .  <)79. 

<-  1629  19  Rymer's  Focdera,  130, 
provision  against  excessive  wciglit  of 
cr.rriages  ou  |)ul)lic  roads.  (i;irlsidi' 
v.  Kast  St.  Louis,  4:5  III.  47,  !S(i7; 
Nagle  V.  Aug\ista,  5  (ia.  541) ;  h'c 
Vandiue,  6  Pick.  187,  1828;  such 
ordinances  must  not  impose  umluly 
hurdensome  re<|uirements,  Stato  v. 
Uohart.  S,3  Minn,  •jr.7,  .'"i 4  I,.  U.  A. 
'.14  7. 

••«  Chicago  V.  Collitis.  175  111.  445. 
51  N.  10.  907,  49  L.  K.  A.  40.H. 

'"Brooklyn     v.     Noiline,    2(!     Hun 


§  169  COMMON  USE  OF  STEEETS.  I53 

The  right  to  pass  includes  the  right  to  carry  goods ;  but  while 
the  removing  of  a  house  through  the  street  without  unneces- 
sary obstruction  and  delay  has  been  held  not  to  be  a  nuisance 
per  se,^^  this  cannot  be  claimed  as  a  common  right;  for  it 
amounts,  for  the  time  being,  to  an  exclusive  occupation  of  the 
street.^^ 

§  169.  Obstruction  and  disorderly  conduct.— The  enjoyment 
of  the  common  public  use  of  streets  requires  freedom  from  ob- 
struction, and  abstaining  from  obstructing  others  is  therefore 
a  limitation  upon  every  one's  right.  An  actual  obstruction  is 
a  common  nuisance,  and  in  order  to  support  an  indictment,  it 
must  be  charged  and  shown  that  traffic  was  impeded.^^  jf  ^^g 
power  of  municipal  regulation  is  to  have  any  additional  value, 
it  must  extend  to  the  prohibition  of  those  things  that  have  a 
tendency  to  create  obstruction,  especially  the  stopping  of  ve- 
hicles, or  of  numbers  of  persons,  for  an  undue  length  of  time. 
Thus  while  the  stopping  of  a  cart  for  an  hour  may  not  be  a 
nuisance  in  every  case,  it  might  be  prohibited  by  ordinance.^ ^ 
The  power  must  be  reasonably  exercised,  and  it  has  been  hold 
that  one  person  cannot  be  forbidden  to  stop  on  the  sidewalk 
for  a  reasonable  length  of  time.^^  The  reasonable  exercise  of 
the  power  is  of  special  importance  because  there  are  many  cus- 
tomary practices  which  have  a  slight  tendency  to  obstruct,  as. 
e.  g.,  by  attracting  crowds,  which  yet  serve  valuable  business 
and  social  interests.  Thus  while  an  effigy  in  a  window  causing 
the  collection  of  great  crowds  was  held  to  be  a  common  nui- 
sance,^^  an  ordinance  forbidding  the  common  display  of  goods 
in  store  windows  would  be  unreasonable.  The  German  Imperial 
Court  while  holding  that  picketing  was  not  criminal  intimated 
that  it  could  be  dealt  with  as  a  form  of  obstruction  under  the 
common  police  power  for  the  protection  of  public  order,  and  in 
England  book-making  on  the  streets  is  likewise  sought  to  be 

512;  Ex  parte  Gregory,  20  Tex.  App.  obstruction  of  highways,  a  munieipal 
210;  Joyce  v.  East  St.  Louis,  77  111.  ordinance  may  forbid  the  construc- 
156.  tion  or  continued  use  of  gates  open- 
so  Graves  V.  Shattuck,  35  N.  H.  ing  or  smnging  out  upon  the  street 
257,  1857.  or  sidewalk.  Town  of  Rosedale  v. 
r.i  Wilson  v.  Eureka  City,  173  U.  Hanner,  157  Tnd.  390,  61  N.  E.  792. 
S.  32,  1899.  r,4  state  v.  Hunter,  106  N.  C.  796, 

52  State  V.  Edens,  85  N.  C.  522.  8  L.  E.  A.  529. 

53  State  V.   Edens,   85  N.   C.   522.  r-n  k.  v.   Carlisle,   6   C.  &   P.   636, 
So  where   the   statute   punishes  the  1834. 


l^^  PUBLIC  ORDER  AM)  COMFORT.  §  1G9 

restrained  on  the  ground  of  obstruction.^*^  To  constitute  a  com- 
mon law  oifense.  it  seems  there  must  be  actual  obstruction 
amounting  to  a  nuisance,  while  under  the  police  power  within 
reasonable  limits  practices  may  be  forbidtlen  which  merely  tend 
to  cause  obstruction.  The  Supreme  Court  of  Massachusetts 
has  held  that  the  municipality  may  forbid  persons  with 
placards  on  their  backs  to  parade  the  streets.""  This  practice 
rarely  constitutes  an  actual  obstruction  and  the  tendency  to 
attract  a  crowd  is  slight;  yet  the  use  of  the  street  for  the 
})urpose  of  attracting  attention  cannot  be  said  to  be  a  common 
riglit ;  and  its  prohibition  to  Ix^  invalid  must  be  shown  to  be  an 
unreasonable  exercise  of  nuniicii)al  discretion. 

The  common  right  to  use  the  streets  is  subject  to  manifold 
restrictions  in  the  interest  of  good  order,  upon  the  principle 
tliat  publicity  imposes  greater  restraints  upon  individual  con- 
duct than  privacy,  and  that  the  ordinary  standards  of  public 
conduct  require  some  regard  for  other  persons'  feelings.  It  is 
unnecessary  to  enumerate  the  various  possible  acts  of  inde- 
cency, breach  of  the  peace  and  quiet,  and  molestation,  that 
are  thus  prohibited  either  by  ordinance  or  by  the  general  crim- 
inal law.''^  Till'  i)i-aetice  of  begging  may  be  prohibited  on  this 
pi'inciplt'. 

5i  170.  Use  of  rivers.  —  I'rinciples  very  similar  to  those  gov- 
♦•rning  the  use  of  streets  apply  to  rivers.  The  right  to  pass 
on  tlif  river  by  boat  is  a  common  right,  but  the  anchoring  or 
mooring  of  vessels  is  ;in  incident  to  it  only  while  not  carried 
to  ;iii  excessive  lenglli  of  time,  iiiid  tlic  time  may  i)e  limited  by 
ordinance.-'''-'  Tlierc  is  no  right  to  use  the  i-ivei-  for  lloating 
warehouses,""  and  a  license  may  be  exacted  for  residing  or 
transacting  business  on  boats.  "Wlu-n  one  takes  up  his  home 
on  a  highway  his  very  right  oT  occupan(;y  rests  on  the  Avill  of 
the  s(»vereignly.  and  his  being  there  at  all  except  as  he  may 
use  it  in  common  with  the  public  and  in  pursuit  of  the  pur- 
[KiHcH  of  its  dedication  de|)ends  on  the  will  of  the  goveru- 
m.nt."*" 

f-n  H«'|Mirl     of    H|ifH-ial    ('omtniHMidii  Hfi;    (it.iixl    li'Mjiiils   v.    Wiilinins,    IIU 

of  HouHc  nf   Lc.rih  (HI   lU'ttinjj,  .Inly,  Midi.  L'I7,  'M\   L.   IC.   A.    i;i7. 

>'>02.  r.i.  Tciinic    v.    I,..(",    H    Mart,    N,    S. 

f'T  Commonwfiiltb     v.      Mc.Cafrcrty,  .'>48, 

Mr,  .Mbmi.  .384,  no  Hurt.    v.     Mayor    of    Albany,    .! 

^•H<H?  Act  of  CongrcHH  for  Dinfrict  I'aijrn  L'13. 

of  Columljin  .July  'jn,  IWl',  II  Huppl.  'u  HolM>rfHoii  v.  Commonwcalfli,  KH 

Ky.  1:85,  40  S.  W.  920. 


§  171  SPECIAL  STREET  USES.  I55 

§  171.  Right  to  use  parks,''^  public  buildings,  etc.— Parks 
are  established  not  for  traffic  or  communication,  but  for  recrea- 
tion of  such  kind  as  may  be  determined  by  the  proper  authori- 
ties. Hence  the  right  to  use  paries  is  subject  to  greater  restric- 
tion than  the  right  to  use  the  streets,  and  the  conduct  of  the 
individual  while  in  the  park  may  be  subjected  to  rules  which 
reasonably  tend  to  its  better  preservation  for  the  purposes  for 
which  it  is  established.  Upon  this  principle  it  has  been  held 
that  vehicles  for  conveying  merchandise  may  be  excluded  from 
a  boulevard,^^  the  reasonableness  of  such  a  rule  according 
to  the  circumstances  of  each  case  being  matter  of  judicial 
control. 

Public  buildings  erected  for  business,  recreation,  or  instruc- 
tion are  subject  to  such  proprietary  control  as  is  not  incon- 
sistent with  the  constitutional  right  of  the  citizen  to  participate 
in  the  enjoyment  of  institutions  supported  by  public  taxation."-* 

SPECIAL  STREET  USES.     §§  172-174. 

§  172.  Special  uses  by  abutters.— Custom  concedes  to  the 
business  and  domestic  requirements  of  the  abutting  owner  cer- 
tain uses  of  the  street  in  addition  to  the  mere  right  of  passage 
and  access :  he  may  have  a  carriage  wait  in  front  of  his  house, 
he  may  load  and  unload  goods  on  the  sidewalk,  and  he  may  be 
permitted  while  building  to  deposit  a  pile  of  brick  in  the  street.^ 
These  slight  and  temporary  technical  obstructions  are  to  be 
distinguished  from  encroachments  which  involve  a  proprietary 
occupation  of  the  street.^  They  are  convenient  and  sometimes 
necessary  and  where  they  do  not  incommode  the  public  mate- 
rially an  ordinance  prohibiting  them  might  well  be  declared 

62  Chicago     Revised     Code     1897,  States  were   subject   to   state  regii- 

§  1373  and  following.  lation.      The    act    was   upheld    as    a 

'••3Brodbine  v.  Inhabitants  of  Re-  police    regulation    upon    the    ground 

vere    (Mass.),   66   N.   E.   607;    Gut-  that  the  proximity  of  large  herds  of 

tery   v.    Glenn,    201   111.    275,   66   N.  sheep    was    offensive    to    the    senses. 

E.  305.  Sifers  v.  Johnson,  65  Pac.  709,  54  L. 

G4A    statute    of    Idaho     (Revised  R.  A.  785;   Sweet  v.  Ballentine,  69 

Statutes     1887,    §1210)     forbidding  Pac.    995.      The    act    has,    however, 

the  grazing  or  herding  of  sheep  with-  since  been   modified  so  as  to  forbid 

in    two    miles    of    a    dwelling    house  grazing,  etc.,  only  on  the  land  and 

seems  to  have  been  intended  to  apply  possessory  claims  of  others.   Revision 

to  the  public  domain,  and  might  have  1901,  §  689. 

been   sustained   without   difficulty   if  1  Dillon,   Section   730. 

the  use  of  public  lands  of  the  United  -  §§  162,  163,  supra. 


J56  PUBLIC  OKDER  AND  COMFORT.  §  173 

unreasonable.  As  a  matter  of  fact  such  practices  are  univer- 
sally allowed.^  They  become  obstructions  only  when  carried 
to  imreasonable  lengths  and  may  then  be  treated  as  nuisances, 
so  where  a  bridge  is  stretched  from  a  wagon  to  a  house,  and 
remains  there  for  hours.-*  The  power  to  regulate  the  use  of 
streets  should  be  held  to  authorise  the  enactment  of  ordinances 
defining  the  manner  in  which  such  special  privileges  are  to  be 
exercised,  and  to  require,  if  deemed  expedient,  a  permit  for 
temporary  exceptional  uses,  such  as  piling  brick  on  the  street,^ 
and  it  would  seem  reasonable  to  prohibit  loading  and  unload- 
ing on  the  street  entirely,  where  an  alley  exists  that  can  be 
used  for  that  purpose. 

i;  173.  Use  for  profit.— It  is  not  one  of  the  purposes  for  which 
streets  are  established,  to  afford  a  convenient  place  on  which 
to  expose  merchandise  for  sale.  Auction  sales  as  well  as  ped- 
dling on  the  streets  may,  therefore,  be  made  dependent  on 
luMMise^'  or  entirely  prohibited.'^  But  in  the  absence  of  special 
prohibition  such  practices  must  be  actual  nuisances  or  obstruc- 
tions to  be  unlawful. 

'I'll!'  carrying  of  goods  and  persons  for  hire  likewise  involves 
a  profitable  use  of  highways.  Such  use  is  conformable  to  the 
general  purposes  of  the  street,  and  is  advantageous  and  neces- 
sary to  Ihe  comnumity;  yet  it  is  in  a  sense  a  special  use  and, 
therefore,  cannot  be  claimed  as  a  matter  of  absolute  right, 
where  the  business  requires  an  exclusive  privilege  like  the  lay- 
ing of  tracks,  or  where  it  carries  with  it  an  occupation  of  street 
space  which  may  tend  toward  obstruction,  as  in  the  case  of  cab 
stands.  It  is,  however,  also  not  unconunon  tliat  other  common 
carriers  I'oi-  hire  asking  no  special  privileges,  like  onniibus 
drivers  and  draymen,  are  i-e(iuinM|  to  lake  out  a  license  as  a 
prcre(|uisile  lo  ihe  right  to  do  l)nsincss.  The  validity  of  such 
rc(|uircincnt  is  generally  acci|)teil,  and  it  may  be  justilied  on 
the  ground  that  these  occui)ations  subject  the  street  to  special 
wear  and  tear,  and  tnay  tend  to  ol)stru(^tion  of  traffic  or  acci- 
d«;ntH  uhen  carried  on  by  incompetent   persons. 

•■>rV)mm<)ii\vc.iltli  V.   f'jiHHinoro,   1    S.  ■•  .McCarlliy  v.   (.'hicapo,  5.^  111.  38. 

&  K.  2\7;  HkiilH  fn.m  tniik  to  HtepH,  •>  Kc   Xinhfinjralp,    II    Pick.    1(5.8. 

WoIhIi    v.    Wilm>n.     101     N.    Y.    2.'54,  7  (lomiiKiinvcnltli     v.     I'enfoii,     1.39 

pinlform    for   iinloiKliiiK,    Murphy    v.  Muhh.  1!»5;  White  v.  Kent,  11  Oh.  St. 

I^'KKcft.  KM  N.  Y.  I'Jl,  r,H  N.  K.  42.  550. 

«r':,ll;n,...n    v.    (iilm.'in,    107    N.   Y. 
360. 


§  174  PARADES  AND  MEETINGS.  I57 

§  174.  Use  for  parades,  processions,  public  addresses  and 
meetings.  — There  are  four  classes  of  decisions  bearing  upon 
this  subject:  first,  those  which  hold  that  an  orderly  addr(^ss 
or  parade,  not  in  fact  obstructing  traffic,  is  not  a  nuisance;^ 
this  seems  to  be  the  general  doctrine  and  means  that  the  use 
of  streets  for  this  purpose,  though  subject  to  the  police  power, 
is  not  intrinsically  unlawful ;  second,  those  which  hold  an  ob- 
structive or  noisy  gathering  to  be  a  nuisance ;"  third,  those 
which  hold  that  the  right  to  hold  a  meeting  or  parade  cannot 
be  made  to  depend  upon  an  unregulated  official  discretion;^" 
and  fourth,  those  which  hold  that  it  may  be  made  to  depend 
upon  such  discretion.ii 

The  Supreme  Court  of  Massachusetts  admits  the  legality  of 
an  unrestricted  discretion  in  allowing  or  disallowing  public 
parades  and  addresses  on  the  ground  that  it  is  within  the 
power  of  the  state  to  prohibit  them  entirely,  and  hence  also  to 
permit  them  on  such  terms  as  it  chooses.  On  the  other  hand 
the  decisions  holding  an  unrestricted  discretion  to  be  illegal,  do 
not  by  necessary  implication  support  an  unqualified  right  to 
use  public  places  for  gatherings  or  demonstrations.  To  hold 
that  a  particular  gathering  is  not  a  nuisance  is  not  inconsistent 
with  the  recognition  of  the  power  of  regulation,  and  to  hold 
that  it  is,  is  not  inconsistent  with  the  denial  of  the  power  of 
absolute  prohibition. 

It  cannot  be  conceded  that  the  state  controls  streets  as  the 
private  owner  controls  his  house.  Yet  parading  and  holding 
meetings  are  not  common  street  uses,  nor  are  they  uses  for 
which  a  park  is  established.  The  entire  prohibition  of  public 
meetings  in  parks  seems  to  be  open  to  no  constitutional  objec- 
tion. The  question  of  the  power  to  prohibit  parades  on  streets 
entirely  is  not  apt  to  arise.  The  practical  question  is  whether 
parades  are  subject  to  restraint  and  regulation,  and  consider- 
ing the  fact  that,  indiscriminately  allowed  and  uncontrolled, 
they  may  easily  lead  to  confusion  and  breaches  of  the  peace, 
it  can  hardly  be  denied  that  they  are  so  subject.    The  law  upon 

8  state  V.  Hughes,  72  N.  C.  25 ;  n  Commonwealth  v.  Davis,  162 
Fairbanks  v.  Kerr,  70  Pa.  86.  Mass.  510 ;    Davis  v.  Massachusetts, 

9  Chariton  V.  Summons,  87  la.  226.     167    U.     S.     43;     Commonwealth    v. 

10  Re  Frazee,  63  Mich.  396;  An-  Plaisted,  148  Mass.  375;  Re  Flaher- 
derson  v.  Wellington,  40  Kan.  173;     ty,  105  Cal.  558. 

Chicago  V.  Trotter,  136  111.  430. 


258  PUBLIC  ORDEE  AND  COMFORT.  ^  175 

this  subject   will   be  fully  discussed   iu  couuection   with  the 
principle  of  equality.^ - 

POWER  OVER  PLACES  OF  PUBLIC  RESORT  IN   PRIVATE 

OWNERSHIP. 

i;  175.— Places  to  which  people  come  in  numbers  and  indis- 
criminately by  invitation  or  license  of  the  owner  and  generally 
for  his  profit:  such  as  public  conveyances,  railroad  depots, 
wharves,  inns,  restaurants  and  theatres,  may  be  said  to  be 
affected  with  a  public  interest.  The  police  poAver  is  usually 
exercised  only  for  safety  and  health ;  but  sometimes  also  for 
public  comfort,  so  in  directing  the  heating  of  cars  or  depots, 
restricting  the  number  of  passengers  to  be  carried  in  a  car, 
regulating  the  landing  of  vessels  at  wharves  ;'••  and — an  ex- 
treme instance — reciuiring  women  attending  theatrical  per- 
formances to  remove  their  hats.^^  The  protection  of  meetings, 
especially  religious  meetings,  from  disturbance,  which  goes  to 
the  extent  of  prohibiting  peddling  within  a  prescribed  distance 
from  grounds  where  camp  meetings  are  being  held,  falls  under 
this  head.'^ 

UFFEN«IVENESS  Afci  A  SUBJECT  OF  POLICE   CONTROL. 

§§  176-]7it. 

ii  176.  Offensiveness  as  a  nuisance.  — The  law  relating  to 
nuisances  dovs  not  always  make  a  sharp  tlistinction  between 
that  which  is  ofl'ensive  and  that  Avhich  is  unwholesome.  The 
two  l<M-iiis  arc  commonly  coupled  in  indictments  and  others  of 
like  inipoi-t,  snrh  ;is  noxions.  n.iiiscous,  etc.,  atlded.  Unwhole- 
Komeiiess  i-('gul.iil\'  iiiclmlcs  oU'ensiveness,  but  the  converse  is 
not  trni'.  In  llie  case  nf  ofl'i'iisive  trades  and  industries,  how- 
ever, dislurl)ing  noises  and  foul  vapors  may,  without  being 
directly  the  cansc  of  discasr,  dcpfivc  of  sleep  (U'  fi'esh  air,  and 

>'-'55  <541-«i»-J,  infid.  -IK),  S  S.  10.  '.Mill.     It  imisl  l.c  ,l,>iil)t.'(l 

>^  Vainlorliill    v.    AiIjimih,    7   Cnwcn  wliotlior    tlic    (IccisioiiH    in    ho    fjir    as 

34S>.  tlicy  .siiHtiiin  llio  power  given  to  llio 

'♦('hicuKo      H«'viHC(|      ('(((Ic,      Si'fH.  n)jiiiJijj;f'rH  of  the  iiicctinj^s  to  license 

1L'51-125H,    iin<l    HtiitiiteH    of    Hcveral  pcildlin^^  witliiii  tlie  otherwise  forbid- 

Mt'''''".  ilfii  (iistancr,  are  sound   in   principle. 

'"  <"ointnonwealfli     v.     IU-atho,     L'tU  Held     unconstilntional     because     not, 

Mawi,  rclli,  41i   Am.   Hep,  4r>();   State  exenptinj,'    ownerH    of    lands    in    the 

V.  Cnte,  r>H  N.  H.  'J40;  Htntc  v.  Itead,  ncijrhhorhood    of    the   cainj)    jneeting, 

I'J    K.    f,    HT;    MyepH   v.    Baker,    I'JO  in  Coinw.   v.  Bacon,    K?   Hush.   L'lO. 
III.  007;  Hfato  V.  Htovall,   lOn   \.  C. 


c  177  OFFENSIVENESS.  159 

on  that  ground  be  regarded  as  detrimental  to  health,"'  Proof 
of  danger  to  health  may  be  required  where  statutory  authority 
IS  confined  to  guarding  against  such  danger,'"  but  boards  of 
health  are  frequently  given  authority  over  offensive  conditions 
in  general,  and  the  common  law  idea  of  a  nuisance  is  satisfied 
by  mere  offensiveness.^'^ 

Where  the  offensive  condition  affects  the  community  at 
large,  or  a  portion  of  it,  it  becomes  indictable  as  a  common  or 
public  nuisance  and  may  be  abated  as  such.^'-*  The  offense  of 
public  nuisance  is  recognised  in  our  criminal  codes,  and  the 
general  law  is  not  necessarily  superseded  by  special  statutes 
dealing  with  certain  aspects  of  dangerous  industries  and  regu- 
lating them.2o  It  is  no  defense  to  the  charge  of  a  nuisance 
that  the  oft'ensive  industry  is  useful,  or  conducted  with  great 
care,2i  qj.  that  it  is  located  in  a  convenient  or  appropriate  place, 
or  that  it  was  established  when  the  neighborhood  was  unset- 
tled, and  that  the  complaining  public  "has  come  to  the 
nuisance. '  '^^ 

The  status  of  established  industries  will  be  discussed  in 
connection  with  the  subject  of  vested  rights.^s 

§  177.  Municipal  power  over  offensive  establishments.— 
The  public  comfort  being  thus  placed  under  the  strong  protec- 
tion of  the  criminal  law,  positive  police  regulations  are  gener- 
ally left  to  local  legislation.  Municipal  charters  frequently 
give  power  to  prohibit  noxious  establishments  in  cities  alto- 
gether, or  to  direct  their  location  or  to  regulate  them. 

In  Massachusetts  the  law  allows  boards  of  health  to  forbid 
offensive  trades  within  the  limits  of  a  town,  or  particular  por- 
tions thereof,  or  to  assign  places  for  their  exercise,  and  such 
assignments  may  be  revoked.^-*     Provision  is  also  made  for 

16  People  V.  Detroit  White  Lead  Eumford  Chemical  Works,  16  Gray 
Works,  82  Mich.  471.  -31. 

17  State  V.  Neidt   (N.  J.  Ch.),  19  21  state  v.  Wilson,  43  N.  H.  415. 
Atl.  318.  "  Commonwealth  v.  Upton,  6  Gray 

18  Commonwealth  v.  Perry,  139  473;  People  v.  Detroit  White  Leail 
Mass.  198;  Bishop  Auckland  Local  Works,  82  Mich.  471;  Ashbrook  ^v. 
Board  v.  Bishop  Auckland  Iron  and  Commonwealth,  1  Bush.  Ky.  139; 
Steel  Co.  Ltd.,  10  Q.  B.  D.  138.  State    v.    Board    of    Health    of    St. 

19  Bishop  New  Grim.  Law  §  1138-  louis,  16  Uo.  App.  8. 
1143,  §  1079-1082.  -'  §§  529-533,  565,  infra. 

20  Commonwealth    v.    Kidder,    107         -'4  Kev.  L.  ch.  75,  Sec.  91. 
Mass.    188,   1871;    Commonwealth   v. 


160  PUBLIC  OEDER  AND  COMFORT.  §  17S 

revocation  by  judicial  proceedings  where  upon  complaint  it  is 
found  that  the  place  so  assigned  has  become  a  nuisance.-''  The 
order  of  prohibition  of  the  board  of  health  is  subject  to  appeal 
to  the  Superior  Court  for  a  jury.^''  The  consent  of  municipal 
or  local  authorities  is  necessary  to  the  erection  of  slaughtering 
or  rendering  establishments,  or  noxious  or  offensive  trades  or 
occupations.-'    Licenses  run  for  only  one  year.--'' 

Like  other  municipal  powers,  that  over  nuisances  must  be 
reasonably  exercised,  and  courts  have  frequently  annulled  op- 
pressive ordinances.  In  Missouri  an  ordinance  of  the  City  of 
St.  Louis  declaring  the  emission,  for  however  brief  a  period 
and  however  unavoidable,  of  dense  smoke,  to  be  a  nuisance, 
was  held  to  be  unreasonable  and  void,-''  but  similar  smoke  or- 
dinances have  been  upheld  in  Illinois,  INIichigan,  and  ]\Iinne- 
sota.-*"  In  ]\Ioses  v.  United  States^^^  the  prohibition  was 
declared  by  an  act  of  Congress,  and  the  defendant  was  not  al- 
lowed to  prove  that  he  had  used  the  best  known  smoke  consum- 
ing appliances,  the  court  holding  that  Congress  may  have 
contemplated  the  use  of  smokeless  fuel.  Tn  many  ])arts  of  the 
country,  the  recjuirement,  whether  mnnicipal  or  statutory,  to 
use  smokeless  fuel,  would  be  plainly  unreasonable. 

J;  178.  Reasonableness  of  standards.— The  oft'ensiveness  must 
as  a  rule  consist  in  actual  jihysical  discomfort,  or  in  a  viola- 
tion of  the  sense  of  decency;  mere  undesirableness  by  reason 
of  social  or  other  prejudices  is  not  sufficient,  not  even  if  it 
leads  to  ;i  <lrpfcci;i1  ion  of  |)roperty.'^-  Thus  a  cemetery  cannot 
without   aggravating  circumstances  be  declared   a   nuisance.^'' 

25  Sec.  JJL*.  ac'tiouable  wrong;    in    Iiuiiaiia,   liow- 

2"»8cc.  95.  ever,  it  1ms  been   luld   that    a  saloon 

2T  Sec.  95).  in   a   residence   district,    alttiout^di    li- 

'-"•.Sfc.  100.  censed    and    alth()U},di    not   conducted 

'■i"  St.     Lonis    V.    T'ackinjj    &    Pro-  in  a  disorderly  niiinner,  may  consti- 

vision  Co.,  Ill    M<..  'ATTi,  'M  L.  K.  A.  t  ate  an  actionable  nuisance.    ITaRRart 

SSI.  V   Stehlin,  ilil  !nd.  43,  .1,')  N.  E.  997, 

»"  Harmon  v.  Ciiicajio,  I  lo  111.  lOO;  ijl'  L.  R.  A.  fiTT.     The  h.cation  of  a 

Field   V.   ChicnKo,  44    III.    App.   410;  smallpox  liospital  <if  a  city  lias  been 

St,   Paul   V.  (lilflllan,  '.W   Minn.  298;  held    i-ot  to   be  an   actionable  wrong 

Pwipie   V,    Lewis,   «(1   Midi.   'J7.3,   two  lo  a<l.joinin>r  owners.     Frazer  v.  Chi- 

.jiijiliceM  diHHentin^.  cajjo,   1,S()   111.  4H(),  .O?  N.   K.    luri.-). 

■>'  WJ  A|.p.  Chh.  n.  C.  4L'8.  r.O  L.  1.'.  la  Lake  View  v.  T.etz.    tl    III.   si  ; 

A.  ''3-.  Mnsjjrove    v.    SI.     I,cinis    ('Iniicli,     ID 

"'The  wime  principle  generally  ap-  La.    Ann.    llll  ;    New    Orle.ins    v.    St. 

pli<»  to  a  imiHame  considered  as  an  Lonis  I'hnnli,   IJ   La.  Ann,  244. 


^179  OFFENSIVENESS.  161 

It  is  certain,  moreover,  that  in  defininjo:  nuisances  no  stand- 
ards may  be  established  which  discriminate  against  tlie  poor. 
The  City  of  Bay  St.  Louis  in  Mississippi,  much  freciuented  as  a 
seaside  resort,  desired  to  protect  the  owners  of  residences 
fronting  on  a  shell  road  which  was  separated  from  the  sea  by 
a  narrow  strip  of  land,  against  cheap  structures  on  that  strip. 
Under  special  statutory  authority  an  ordinance  was  therefore 
enacted  forbidding  the  erection  of  shanties,  etc.,  which  would 
obstruct  the  view  of  the  sea,  and  intercept  the  sea  breezes. 
The  statute  and  the  ordinance  described  these  erections  as 
nuisances ;  but  it  was  held  that  the  prohibition  of  a  use  of 
property  adapted  to  the  needs  of  the  poorer  classes  was  an 
unconstitutional  taking  of  property.^^ 

§  179.  Assignment  to  specified  districts. •^'^— The  assignment 
of  noxious  establishments  to  designated  limits  is  closely  re- 
lated to  their  exclusion  from  specified  districts,  and  would  be 
derived  from  the  power  to  regulate  and  direct  their  location. 
It  is,  however,  not  the  practice  to  exercise  the  power  in  this 
form;  the  closest  approximation  to  it  is  found  in  excluding 
them  from  all  parts  of  the  city  excepting  some  particular 
portion.  This  may  leave  their  status  in  that  portion  to  the 
common  law.  In  the  most  notable  case  bearing  upon  this 
subject,^*^  an  ordinance  of  the  City  of  New  Orleans  prohibited 
lewd  women  from  living  anywhere  without  the  limits  of  two 
particularly  described  districts,  but  added  that  this  should  not 
be  held  to  authorise  such  a  woman  to  live  in  any  portion  of 
the  city.  The  Supreme  Court,  however,  in  upholding  the  ordi- 
nance as  not  violating  any  federal  right  broadly  sanctions  this 
kind  of  discrimination :  ' '  The  power  to  prescribe  a  limitation 
carries  with  it  the  power  to  discriminate  against  one  citi/.en 
and  in  favor  of  another.  Some  must  sufit'er  by  the  establish- 
ment of  any  territorial  boundaries."  "If  the  power  to  pre- 
scribe territorial  limits  exists,  the  courts  cannot  say  that  the 
limits  shall  be  other  than  those  the  legislative  body  prescribes. 
If  these  limits  hurt  the  present  plaintiffs  in  error,  other  limits 
would  hurt  others.  But  clearly  the  inquiry  as  to  the  reason- 
ableness or  propriety  of  the  limits  is  a  matter  for  legislative 
consideration,  and  cannot  become  the  basis  of  judicial  action. 

34  Quintini    v.    Bay    St.    Louis,    64         35  See  also,  §§  245,  689. 
Miss.  483.  3cL'Hote  v.  New  Orleans,  51  La, 

Ann.  93,  177  U.  S.  587. 


162  PUBLIC  ORDER  AND  COMFORT.  §  180 

The  ordinance  is  an  attempt  to  protect  a  part  of  the  citizens 
from  the  unpleasant  consequences  of  such  neighbors.  Because 
the  legislative  body  is  "unable  to  protect  all,  must  it  be  denied 
the  power  to  protect  any? "3" 

This  statement  will  hardly  command  general  assent,  and  not 
being  called  for  bj'  the  circumstances  of  the  case,  need  not 
be  accepted  as  authoritative.  It  is  sufficient  that  in  the  case 
before  the  court  the  owners  in  the  district  were  not  deprived 
of  any  remedy  civil  or  criminal  Avhicli  they  had  before ;  and 
the  ordinance  expressly  disclaimed  being  a  license.  On  general 
principles  an  ordinance  must  not  be  partial  or  oppressive,  and 
it  is  difficult  to  imagine  greater  possibilities  of  partiality  and 
oppressiveness  than  in  the  exercise  of  an  uncontrolled  power 
to  determine  districts  for  noxious  establishments.  I\Ioreover 
it  is  well  established  that  a  nuisance  cannot  be  legalised  which 
is  a  violation  of  a  private  right  except  through  the  power  of 
eminent  domain.'''*  An  ordinance  withdrawing  merely  the 
liability  to  prosecution,  might  be  legally  and  practically  un- 
objectionable.-'" So  far  as  private  rights  are  concerned,  it 
would  leave  owners  to  their  remedy  by  damages  and  injunc- 
tion, if  injury  could  be  shown ;  but  in  the  case  of  the  selection 
of  a  district  already  given  ovov  to  otfensive  establishments 
tlii'i-r  would  ;is  ;i  riilr  be  no  ground  for  ])rivate  complaint,  an 
iiijiiiK'tion  could  be  refused,""*  and  the  damages  would  be  nom- 
inal. An  ordinance  assigning  limits  might  thus  practically 
accomplish  its  purpose  without  injustice  or  violation  of  legal 
riirhts. 

rxsiciiTi.iXKss.    §s  is()-is.s. 

§  180.     Limiting  the  height  of  buildings  on  public  parks.— 

The  various  locnis  of  oircMsivcness  over  which  the  police  power 
is  cxi'rciscd  <lo  not  as  yet  include  unsightly  objects,  in  pro- 
hibiting the  exhibition  of  pei'sons  whose  deformity  attracts 
public  curiosily"  f he  state  places  ;i  check  upon  ;iii  indecent  .iihI 
Hcandalous  i)r;ic1ice.  'I'Ih-  (jui-stioii  whet  her  mei-e  ugliness  not 
involving  any  consideration  ol'  (|ecenc\-  c;in  he  placed  under 
fxdicc  rcHtraint  has  hardly  :i(lv:inced  beyond  the  range  of 
tcntntive  dis«MiHsion. 

3M77  U.  H.  597.  ••'•  HIkIi,    InjiuictioiiH,    §§742,    7rt'2. 

MO.  iufm.  4  1  lllinoiH  Ad    April   L'L',   1899. 

'  ...Miii..ii.>.  .iHh        V.        Tiniiifdril 
f'hcmiral  Wc.rkw,  16  (Jrny,  Ij.ll. 


§  180  UNSIGHTLINESS.  163 

The  case  of  Attorney  General  v.  Williams^^  deals  with  this 
question,  although  not  directly  from  the  point  of  view  of  tin- 
police  power.  An  act  of  Massachusetts  of  1898  limited  build- 
ings in  the  neighborhood  of  Copley  Square,  Boston,  to  a  certain 
height,  providing  at  the  same  time  for  the  payment  of  com- 
pensation to  those  property  owners  who  should  suffer  by  the 
limitation.  The  act  was  uphekl  as  an  exercise  of  the  power  of 
eminent  domain,  and  the  principal  question  discussed  by  the 
court  was  whether  the  use  could  be  regarded  as  public.  "It  is 
argued  by  the  defendants  that  the  legislature  in  passing  the 
statute  was  seeking  to  preserve  the  architectural  symmetry  of 
Copley  Square.  If  this  is  a  fact,  and  if  the  statute  is  merely  for 
the  benefit  of  individual  property  owners,  the  purpose  does  not 
justify  the  taking  of  a  right  in  land  against  .the  will  of  the 
owner.  But  if  the  legislature  for  the  benefit  of  the  public  was 
seeking  to  promote  the  beauty  and  attractiveness  of  a  public 
park  in  the  capital  of  the  commonwealth,  and  to  prevent  un- 
reasonable encroachments  upon  the  light  and  air  which  it  had 
previously  received,  we  cannot  say  that  the  law-making  power 
might  not  determine  that  this  was  a  matter  of  such  public 
interest  as  to  call  for  an  expenditure  of  public  money,  and 
to  justify  the  taking  of  private  property."  The  court,  how- 
ever, also  suggests  another  theory  for  the  exercise  of  such  a 
power.  "In  view  of  the  kind  of  buildings  erected  on  the  streets 
about  Copley  Square,  and  the  use  to  which  some  of  these  build- 
ings are  put,  it  would  be  hard  to  say  that  this  statute  might 
not  have  been  passed  in  the  exercise  of  the  police  power,  as 
other  statutes  regulating  the  erection  of  buildings  in  cities  are 
commonly  passed." 

A  later  statute  of  Massachusetts^ »  limited  the  height  of 
buildings  on  a  small  tract  west  of  the  State  House  to  70  feet 
and  allowed  petitions  for  the  assessment  of  damages  in  so 
far  as  the  act  or  proceedings  to  enforce  it  might  deprive  the 
petitioners  of  rights  existing  under  the  constitution.  It  was 
contended  on  the  part  of  the  commonwealth  that  the  act  was 
an  exercise  of  the  police  power,  and  in  so  far  as  the  limitation 
was  reasonable  no  rights  under  the  constitution  were  impaired. 
The  court  however  held  that  Avithout  express  statutory  pro- 

42  174    Mass.    476,    55    N.    E.    77,         ^3  1899  ch.  457. 
1899;  Williams  v.  Parker,  188  U.  S. 
491,  1903. 
11 


IQ^  PUBLIC  ORDER  AND  COMFORT.  §  181 

vision  to  that  effect  it  could  not  be  assumed  to  have  been  the 
legislative  will  and  jiidgnieut  that  property  rights  should  be 
restricted  without  compensation.  ''The  objection  to  the  in- 
terpretation is  that  it  supposes  the  legislature  without  clear 
words  to  have  used  the  police  power  in  one  of  its  extreme  man- 
ifestations for  a  purpose  which  although  conceded  to  be  public 
is  a  purpose  which  may  be  described  as  a  luxury  rather  than 
necessity,  *  *  *  So  that  to  sustain  the  restriction  to  its 
whole  extent  under  the  police  power  would  be  a  startling  ad- 
vance upon  anything  heretofore  done.""*'*  This  decision  shows 
after  all  considerable  hesitation  and  doubt  as  to  whether  the 
police  power  can  be  validly  exercised  without  compensation 
for  mere  aestlietie  interests.-*'^ 

§  181.  Building  regulations  not  for  purely  aesthetic  pur- 
poses.—General  inuiiic'ipal  liuiltling  regulations  in  this  country 
are  enacted  exclusively  in  the  interest  of  health  or  safety.  An 
ordinance  of  the  City  of  Baltimore  providing  for  the  refusal 
of  building  permits  unless  the  size,  general  character  and  ap- 
pearance of  the  building  or  buildings  to  be  erected  will  conform 
to  the  general  character  of  the  buildings  previously  erected 
in  the  same  locality,  and  will  not  in  any  way  tend  to  depreciate 
tho  value  of  surrounding  improved  and  unimproved  property, 
was  held  void  as  not  authorised  by  the  city's  charter  powers, 
tlie  court  leaving  the  question  open  whether  such  power  can 
be  conferred  upon  a  city  at  all.-*"  In  America  buildings  have 
never  been  controlled  liy  law  with  a  view  to  securing  beauty 
or  symmetry,  whereas  such  regulations  are  not  unknown  in 
Kurnprim  cities.  It  may  be  conceded  that  the  restrictions  im- 
posed rarely  inflict  aclti.il  <lamage.  nevertheless  they  constitute 
a  substantial  inipaii'incnt  of  the  right  of  property,  and  the 
iniruitcnancc  dl"  .m  (if(ici;il  st;in(l;n-(l  of  beauty  would  not  easily 
lie  recognised  luiiler  dur  theory  of  constitutional  law  as  a 
suflicicnt  warrant  for  the  exercise  of  the  police  power.  The 
statute  (.r  .Massachusetts  may  be  regarded  as  authorising  the 
eon«leiiiiuition  of  air  space  loi-  the  |)ur|)ose  of  securing  addi- 
tioiuil  light  lo?-  a  pultlic  pai-l<,  oc  a  public  building,  a  i)uri>ose 
oloHcly  related  to  th.-se  |)ul)lic  improvements  and  lieiicc  suffi- 
cient to  .justify  the  exercise  of  the   power  of  emiii.'iil    domain. 

«♦  I'nrkor  v.  f^om.,  178   Mhhh.   1!M»,  <"  RoHfock    v.    RumH,    <l.^)    Md.   400 

r>«  N.  F-:.  n.Ti.  5..  ah.  mr,. 

"Heo  5  r,11.  infrn. 


§  182  UNSIGHTLJNESS.  ^^5 

The  purpose  of  making  a  parkway  attractive  does  not  justify 
a  requirement  that  owners  place  their  houses  forty  feet  back 
of  the  line  of  the  boulevard,*"  nor  the  prohibition  of  business 
avocations  on  property  fronting  thereon.^^  Such  requirement 
and  prohibition  might  be  sustained  upon  payment  of  compensa- 
tion, for  space  and  quiet  may  be  regarded  as  auxiliary  to  the 
sanitary  purposes  of  a  park  system  which  justify  the  exercise 
of  the  power  of  eminent  domain.  But  if  the  purpose  were 
purely  aesthetic,  the  impairment  of  property  rights,  even  upon 
payment  of  compensation,  would  not  pass  unchallenged.  The 
city  of  Bridgeport  in  Connecticut  attempted  to  prohibit  the 
erection  of  buildings  on  either  side  of  a  new  bridge,  that  might 
mar  the  sightliness  of  the  structure.  The  purpose  was  proposed 
to  be  accomplished  by  the  establishment  of  harbor  lines,  with- 
out payment  of  compensation,  a  measure  which  the  supreme 
court  of  the  state  held  to  be  both  in  violation  of  vested  rights 
and  in  contravention  of  the  city  charter.  The  court,  however, 
also  took  occasion  to  condemn  the  purpose  as  one  "which  no 
one  would  claim,  to  be  a  public  one  within  the  meaning  of  the 
constitution.  "■*'^  The  point  received  no  further  discussion,  and, 
as  will  be  noted,  it  was  not  essential  to  the  decision  of  the 
case.  It  is  therefore  not  necessary  to  accept  this  view  as  final 
and  conclusive.^** 

§  182.  Unsightly  advertisements.— Municipal  ordinances 
against  bill  boards  used  for  advertising  purposes,  are  usually 
placed  on  grounds  of  public  safety,  and  are  therefore  restricted 
to  boards  exceeding  a  certain  height  and  placed  within  a  cer- 
tain distance  from  the  sidewalk.     Whether  they  are  upheld 

*"  St.  Louis  V.  Hill,  116  Mo.  527.  held    liable    to    make    compensation. 

48  St.  Louis  V.  Dorr,  145  Mo.  466.  (Imperial  Court  .Ian.  9,  1SS2.     Gru- 

40Farist  Steel  Co.   v.  Bridgeport,  chot,  Vol.  26,  p.  935.)     Regulations 

60  Conn.  278,  1891.                       ,  intended   to   maintain   the   suburban 

50  The  Prussian  Code   (1,  8  §  66)  character   of   certain    localities   have 

provides    that    no    building   shall    be  been   upheld   in   Prussia,   in   the   ab- 

erected  or  altered  so  as  to  prejudice  sence  of  statute,   as   sanitary   meas- 

or  endanger  the  public  or  so  as  to  ures   within   the  jurisdiction   of   the 

disfigure    cities    and    public    places,  police    authorities.      (Kamptz    Ober- 

Where  a  building  permit  was  refused  verwaltungsgericht    IV.,    1,    p.    388. 

in  order  to  save  the  view  of  a  public  Decision  of  Jan.  13,  1894.)     In  other 

monument      from     obstruction,      the  German    states    they   are   authorized 

state  as  owner  of  the  monument  was  by  law. 


166 


PUBLIC  OEDEK  AND  COMFORT. 


§182 


as  safet.y  measures.^  or  held  to  be  unreasonable  and  void  as 
not  being:  called  for  by  any  real  danger,-  they  do  not  claim 
to  restrain  on  the  ground  of  unsightliness,  and  no  attempt 
has  been  made  to  deal  with  unsightly  advertisements  placed 
on  houses  or  on  conspicuous  natural  objects  or  monuments. ^ 
It  is  generally  assumed  that  the  prohibition  of  unsightly 
advertisements  (provided  they  are  not  indecent),  is  entirely 
beyond  the  police  power,  and  an  unconstitutional  interference 
with  the  rights  of  property.  Probably,  however,  this  is  not 
true.  It  is  conceded  that  the  police  power  is  adequate  to  re- 
strain oft"ensive  noises  and  odors.  A  similar  protection  to  the 
eye,  it  is  conceived,  would  not  establish  a  new  principle,  but 
carry  a  recognised  principle  to  further  applications.  In  the 
matter  of  offensiveness,  the  line  between  a  constitutional  and 
an  unconstitutional  exercise  of  the  police  power  must  necessa- 
rily be  determined  by  differences  of  degree.-*  It  is  true  that 
ugliness  is  not  as  offensive  as  noise  or  stench.  But  on  the  other 
hand  offensive  manufactures  are  useful,  and  the  offense  unin- 
tentional and  inevitable,  whereas  in  the  case  of  an  advertise- 
ment the  owner  claims  the  right  to  obtrude  upon  the  public 
an  offensive  sight  which  they  do  not  want,  and  Avhich  but  for 
this  undesired  obtrusion  would  not  be  of  tlu>  slightest  value 
to  him."' 


1  Rochester  v.  West,  164  N.  Y.  510, 
58  N.  E.  073. 

2  Crawford  v.  Topcka,  ")]  Kan. 
756,  L'O  L.  ]{.  A.  692. 

•■'  In  Ciermany  a  police  ordinance 
ajjaiiiHt  coverinj^  roofs  with  advcr- 
tiseinotitH  was  su.stained  on  tiic 
(ground  tliat  such  advertisements,  by 
cansin^;  people  to  stop,  distiirli  traf- 
fic. 

«  Rideotit  V.  Knox,  148  Mass.  .368. 

s  However,  oven  if  the  power  to 
roKtriiin  unsif^htly  Bigns  he  romcded, 
the  manner  of  its  exercise  would  jjive 
riw  to  constitutional  dillicuities.  A 
I'niwiinn  Htatute  of  1902  provides 
that  the  competent  police  authorities 
shall  have  ti'>w<T,  in  f>rdcr  to  jircviMit 
the  <lisfl^fnr<  inciit  of  jtlaces  disfin- 
ffiiinhed  in  point  of  scenery,  to  make 


regulations  forbidding  outside  of 
cities  and  villages  advertising  signs 
or  other  inscriptions  and  pictures 
wliicli  mar  tiie  landscaiie.  Under  our 
govcrnnuMital  system  these  regula- 
tions would  iiave  to  proceed  from  thn 
legislative  authority  of  either  stato 
or  locality.  Such  regulations  wouKl 
have  to  define  what  signs  are  pro- 
liil)iti'd,  ;iiid  soiiu^  test  would  have  ta 
be  fliscovered  by  which  to  di.scrimi- 
nafc  that  which  is  merely  unaesthetic 
from  th;it  which  is  so  offensive  as  to 
fall  nndei-  tlic-  |Miliic  |iii\\cr,  since  tiie 
prohibition  nt'  ;ill  advertising  signs 
woulil  be  out  of  the  (iiiestion.  Under 
the  principle  of  eipi.-ility,  moreover, 
a  use  of  property  conceded  to  one 
person  couM  not  he  denied  to  an- 
other simply  because  he  lives  in  more 
attractive     surroundings;     especially 


i?  183  FLAG  LEGISLATION.  167 

i;  183.     Flag    legislation.— After    the    Spanish    war,    durinf^ 
which  some  popular  feeling  had  been  aroused  by  the  indiscrim- 
inate use  of  the  national  flag  for  commercial  purposes,  which 
was  believed  to  cheapen  and  degrade  it.  a  number  of  the  states 
enacted  laws  restraining  such  use.     In  Illinois,  an  act  of  April 
22d,  1899,  made  it  unlawful  to  use  or  display  the  national  flag 
or  emblem  or  any  likeness  of  it,  for  advertising  purposes;  the 
act  not  to  affect  exhibitions  of  art,  or  to  restrict  in  any  way 
the  use  of  the  flag  for  patriotic  purposes.     This  act  was  de- 
clared unconstitutional  by  the  Supreme  Court  of  Illinois.^    The 
decision  was  based  on  three  different  grounds.     The  act  was 
held  to  be  unduly  discriminating  and  partial  in  its  character, 
in  that  it  exempted  from  its  operation  the  use  of  the  flag  for 
exhibitions  of  art.     "The  legislature  clearly  has  no  power  to 
deny  to  plaintiff  in  error  the  right  to  use  the  national  flag  to  ad- 
vertise his  business,  or,  in  other  w^ords,  to  deny  to  all  persons  fol- 
lowing particular  occupations  the  right  to  use  the  national  flag, 
and  at  the  same  time  to  permit  artists  or  art  exhibitors  to  use 
the  same."     This  point  does  not  however  seem  to  be  very 
strongly  relied  upon,  and  a  fuller  consideration  might  have 
convinced  the  court  that  the  exception  in  favor  of  art  was  well 
justified  by  the  nature  and  purpose  of  the  statute.     The  court 
argues  in  the  second  place,  that  since  the  state  of  Illinois  had 
never  adopted  a  flag  emblematic  of  its  sovereignty,  and  the  flag 
is  the  flag  of  the  United  States  as  a  sovereignty,  the  right  to 
use  it  would  seem  to  be  a  privilege  of  a  citizen  of  the  United 
States,   subject  to  restraint   only   by   act   of   Congress.     The 
point  thus  made  is  a  novel  one,  and  capable  of  final  adjudica- 
tion only  by  the  Supreme  Court  of  the  United  States.     The 
court,  however,  also  holds  that  apart  from  the  other  objections, 
the  act  is  invalid,  as  not  being  within  the  police  power  of  the 
state.    We  must  therefore  assume  that  the  decision  would  have 
been  the  same,  if  the  flag  had  been  that  of  Illinois,  and  no  dis- 
crimination had  been  made  in  the  prohibition.    This  view  seenis 
to  be  based  upon  an  unduly  narrow  conception  of  the  scope 
of  the  police  power.     The  court  says  of  the  prohibited  use: 
"It  may  violate  the  ideas  which  some  people  have  of  sentiment 
and  taste,  but  the  propriety  of  an  act  considered  merely  from 

where      the      offensiveuess      consists         ••  Euhstrat  v.  People,  185   111.   li^:?. 
L-hiefly  or  entirely  in  the  impairment     57  N.  E.  41. 
of  natural  beauty. 


IQg  PUBLIC  ORDER  A^D  COMFORT.  §  184 

the  standpoint  of  sentiment  and  taste,  may  be  a  matter  about 
which  men  of  equal  honesty  and  patriotism  may  differ."  The 
court  appears  to  ignore  the  difference  between  aesthetic  senti- 
ment with  which  the  state  has  no  concern  except  in  the  exercise 
of  its  proprietary  powers,  and  a  sentiment  which  the  com- 
munity has  a  legitimate  interest  in  having  honored  and  re- 
spected. If  by  a  reasonable  regulation  the  state  can  prevent 
the  flag  from  being  cheapened  and  degraded,  such  regulation 
would  seem  to  be  within  the  scope  of  the  police  power,  as  a 
measure  for  the  protection  of  the  public  sense  of  what  is  fit 
and  decent.'  If  it  is  a  legitimate  consideration  against  the 
validity  of  a  statute  that  men  of  equal  honesty  and  patriotism 
may  differ  about  it,  but  few  statutes  could  be  regarded  as  con- 
stitutional. 

SUNDAY  REST.     §§  184-186. 

§  184.  Legislation.— The  protection  of  Sunday  as  a  day  of 
rest  has  a  clear  relation  to  public  order  and  comfort.  It  is 
probable  that  at  common  law  only  conduct  creating  a  public 
luiisance  was  punishable.'^  A  number  of  statutes  were  enacted 
in  England  since  the  middle  of  the  fifteenth  century  restrict- 
ing business  or  pleasure  on  Sunday,  and  the  act  of  29  Charles 
II  prohibited  all  worldly  business,  labor  or  work  of  one's 
ordinary  calling,  works  of  necessity  or  charity  only  excepted. 
This  statute  has  become  the  foundation  of  Sunday  legislation 
in  manj'  American  states.  So  in  ^Massachusetts  it  is  forbidtlen 
1o  keep  open  any  shop,  warehouse  or  MH)rkhouse,  to  do  any 
iiiiinncr  of  labor,  business  oi-  work  except  works  of  necessity 
oi-  ili;irit\'.  to  l;ikt'  p;irl  in  any  game,  si)ort  or  play,  to  be 
prosejit  a1  ;iiiy  (l;iiiciiig  oi-  pultlic  divci'sion,  show,  ganu',  oi-  cii- 
tcrtaiiiiiHiit,  to  li-;ivcl.  to  ciitci't.-iiii  otiici-  lh;in  travellers, 
strangers  or  lodgei-s.  to  discharge  tii-eaniis,  oi-  to  .itteinpt  to 
take  fish.'"  The  majority  of  states  forbid  all  connnon  or 
ordiii;ii-\-  hihor  ^ works  of  necessity  and  charity,  and  sonu^times 
other  stated  kinds  of  business,  excepted ),  and  all  game,  spoi-t  or 
play.     Employment  of  others  is  specially  forbidden  in  a  num- 

'  Tin-  Htimiilatirtn   of  nntional   .'iikI  «  Ah  to  rcIijrionH  oqualify  soo  Sec. 

I.nfriolio  Hcntimont    Ih  an   ohjcd    for  J 70,  iiifni. 

which   the  powj'r  of  eminent    iloniain  » HJHliop     New     < 'i  iiiiiiiiil     jjaw,    I, 

miiy  ho  cxorc'iHC'l.     See  Uiiite<l  Htates  §  4!t!». 

V.    GotfvHtMirK    KIcctric    R.    Co.,    160  e>  ,Mj,hh.   I{,,v.   LavvH,  eh.  !I8. 


§  185  SUNDAY  REST.  l^jy 

ber  of  states.^  1  Some  states  forbid  only  the  keeping  open  of 
shops,  stores  and  places  of  business,i^  or  only  public  amuse- 
ments.i-'^  Colorado  and  Illinois  forbid  the  disturbinj^r  of 
the  peace  and  good  order  of  society  by  labor  or  amusement, 
and  New  Hampshire  likewise  forbids  only  work  to  the  disturb- 
ance of  others.  California,  Idaho  and  Arizona  have  no  Sunday 
legislation. 

§  185.  Protection  of  customary  quiet.— It  is  well  established 
that  the  character  of  Sunday  legislation  is  secular  and  not 
religious,  and  under  the  principle  of  separation  of  church  and 
state  it  could  not  be  otherwise.^-*  The  enforced  abstention 
from  work  has  been  held  to  be  justified  by  the  experience,  that 
periods  of  rest  from  ordinary  pursuits  are  requisite  to  the 
moral  and  physical  well-being  of  the  people.^  •'^  This  argument 
logically  implies  a  recognition  of  the  legislative  power  over 
periods  of  work  and  of  rest  in  general — a  power  which  many 
courts  would  perhaps  be  unwilling  to  concede.^^ 

When  we  look  however  upon  Sunday  rest  as  an  established 
social  institution,  the  legislation  regarding  it  may  be  explained 
upon  a  different  principle.  It  may  then  be  looked  upon  as  a 
measure  for  the  protection  of  the  good  order  and  comfort  of 
the  community  established  and  recognised  by  common  custom 
and  convention.  As  under  natural  conditions  public  order  has 
a  different  meaning  in  the  night  time  and  in  the  day  time,  so 
it  has  under  social  conventions  a  different  meaning  on  Sundays 
and  weekdays. 

11  Alabama,  Arkansas,  District  of  day  laws  were  held  to  be  uncoustitu- 
Columbia,  Kansas,  Kentucky,  Mis-  tional.  This  decision  was  subse- 
sissippi,  Missouri,  Ehode  Island,  Ten-  quently  overruled  (ex  parte  Andrews, 
nessee,  Texas,  Virginia  and  "West  18  Cal.  678),  but  in  1883  the  Sunday 
Virginia.  legislation    of     California     was     re- 

12  Alabama,      Louisiana,      Oregon,  pealed. 

Washington,  Wyoming.  i«  An  analogous  exercise  of  power 

13  Colorado,  Mississippi,  Montana,  would  especially  be  found  in  the  re- 
Nevada,  Texas,  Utah  and  Washing-  quirement  of  closing  places  of  busi- 
ton.  ness  at  and  after  a  stated  hour  of  tho 

14  State  V.  Orleans  Judge,  39  La.  evening.  As  such  requirements  where 
Ann.  132;  Specht  v.  Commonwealth,  they  exist  proceed  as  a  rule  from 
o  Pa.  St.  312.  municipal   authorities  and   not   from 

15  State  V.  Powell,  58  Ohio  St.  324,  the  legislature,  their  validity  depends 
1896.  In  an  early  California  case  in  part  also  upon  the  extent  of  dele- 
(ex  parte  Newman,  9  Cal.  502)  Sun-  gation  of  power  to  the  municipality. 


170  PUBLIC  ORDER  AND  COMFORT.  §  186 

j  186.  Prohibition  of  business.  — The  iiuostiou  tlieu  arises 
how  far  the  enforcement  of  Sunday  rest,  as  a  measure  of  pro- 
tection of  customary  peace  and  quiet,  may  go.  The  common 
law  was  adequate  to  deal  with  disturbances  which  amounted 
to  nuisances,  and  the  laws  of  Illinois  and  Colorado  remain 
within  the  like  narrow  compass.  Noisy  trades  and  amusements 
would  fall  especially  under  the  ban  of  these  laws.  The  pro- 
hibition of  keeping-  open  stores  and  shops,  and  places  of  public 
amusement  goes  one  step  further,  but  may  also  be  justified 
as  removing  a  constant  invitation  and  temptation  to  the  public 
to  be  drawn  into  the  common  traffic  and  activities  of  work 
days. 

The  prohibition  of  avocations  and  business  not  soliciting  pub- 
lic patronage  can  be  justified  only  l\y  the  consideration  that 
the  prevention  of  competition  is  necessary  to  secure  cessation 
of  work  to  those  desiring  to  rest,  that  such  cessation  cannot  be 
maintained  unless  it  is  uniform.^'  The  argument  applies  with 
special  strength  to  the  protection  of  employees.  Where  the 
business  does  not  require  the  services  of  others,  its  prohibition 
must  be  regarded  as  an  extreme  measure.  It  is  hardly  enforce- 
able with  regai'd  to  purely  private  and  individual  labor,  but  the 
state  can  and  does  withhold  remedies  upon  contracts  entered 
into  on  Sunday.'^  As  in  doing  so  it  does  not  exercise  any 
compulsion,  lliis  jiolicy  is  perluips  not  open  to  constitutional 
objection,  hut  it  can  accomplish  its  purpose  only  by  encourag- 
ing breach  of  f;iith  and  gross  injustice.  The  prohibition  of 
private  recreation  by  ganu's  or  other  annisements  not  disturb- 
ing the  j)ublic  is  not  only  practically  beyond  the  power  of  the 
state,  but  cannot  be  justified  upon  ;in>-  legitimate  consideration 
<if  public  interest.  If,  luider  the  New  York  law.  it  has  been 
held  that  fishing  on  Sunday  even  on  private  grounds  is  uri- 
lawful,  this  decision  ciin  he  maintained  only  upon  the  principle 
that  the  taking  of  fish   is  entirely  and  al)solutel\'   within  legis- 

A  ••loHiii^j  oniiniiiicc  was  held   illc^ral  >,\'   aulumai  jc   sidt    inacliincs    fiirnisli- 

in   North  (Jaroliim,  Htalo  v.   Hay,  4L'  inj;  j^noiis. 

H.    K.    mo.      I'rnviHioiiH    for    cloHiriK  »« Tlio    nil<>    ,>f    the    MassaclmscltH 

plarim    where    lif|uor    iH    hoIiI    involve  courtH   (alno  adopted  in   Maim-)    (hat 

difTurcnt  conmderationH,  a    perHon    travelling   on    Siinda.v   (  an- 

"  That  the  danj^er  of  eoinpetilion  not     recover     for     injury     snHtainerj 

juHtifleti      nwlrainf,      appearH      most  while  (ravelling,   has  Itcci;  abrogated 

clearly  from  the  (ierniaii   practice  of  by  Htafnfo. 
forliiddiric  mi  Sundays  the  operation 


§  186  SUNDAY  BEST.  Xjl 

lative  control.^^  Sunday  laws  should  certainly  wherever  pos- 
sible be  so  construed  as  not  to  affect  any  pursuit  which  is 
neither  competitivi;  nor  carried  on  in  public. 2" 

19  People  V.  Moses,  65  Hun,  161.  so  People  v.  Dennin,  35  Hun  3:^7; 

Rucker  v.  People,  67  Miss.  328. 


CHAPTER  VII. 

PUBLIC  MORALS. 

^  187.  In  general.— The  exercise  of  the  police  power  for 
the  protection  oi"  public  morals  proceeds  upon  a  number  of 
g:rotnids:  that  vice  is  intrinsically  evil  and  has  no  right  to 
existence  or  tok^ration ;  that  it  impairs  the  strength  of  the  com- 
munity ;  that  its  practice  is  of  evil  example  and  tends  to  corrupt 
others;  and  that  its  manifestation  is  offensive  to  the  public 
and  violates  the  implied  conditions  of  community  life  whereby 
each  is  bound  not  to  outrage  in  an  offensive  manner  prevailing 
public  sentiment.  These  grounds  are  less  urgent  than  those 
underlying  the  measures  for  the  protection  of  the  physical  wel- 
fare of  the  community,  and  the  exercise  of  the  police  power  in 
this  direction  means  a  greater  assertion  of  governmental  au- 
thority than  the  protection  of  peace,  safety  and  order.  The 
interference  of  the  state  is  made  more  plausible  and  acceptable 
by  taking  the  view  that  acts  and  conditions  which  primarily 
violate  only  morality,  are  apt,  in  their  more  remote  and  indirect 
consequences,  to  produce  i)hysical  disorder  and  crime,  and 
thus  to  endanger  the  public  safety. 

The  practices  with  which  legislation  is  chiefly  concerned  are: 
gaiiililing.  <lrink,  and  sexual  immorality.  Brutality  is  legis- 
latfMJ  against  to  some  extent.  The  subject  of  public  amusements 
is  closely  connected  with  pul)iic  morals  in  its  various  aspects. 
an<l  in  this  country  is  hardly  treated  or  considered  apart  from 
specific  I'di'iiis  uf  iiiiiiiofjilit y."  • 

'  Lc(;iHliition  for  the  protection  of  siblo  standards.     A   strong  sense  of 

n.oriilH  Ktn>nj,dy  rclle<'tH  pnblic  senti-  civil   liberty   affords  no  >i;iiaranty  of 

inenf   and   |»r<'jiidico.      It    is  (lie  trib-  tolerance   for    practices   c(mcei\('c|    to 

lite   wliicli    the   or);aniMed    <'oininnnity  Ix'  iiiniioral,  especially  wlicrc  the  im- 

[lavH  to  virtne,  and  the  trilnite  is  will-  nidrality    bears    on    social    as    distin- 

injjly    |»aid    so    lonj;    as    it    invt)!ves  ^iiisiied    from    ))nsiness  and    |iolitical 

nothing;  more  tiuin  the  ena<'tnient  of  rcdations;    on    the    contra I'v,    the    en- 

n  Htfitnte.     The    statnti'    i)ooks    fre-  li;,diteiied    deinncralic    ciiiiiiiiunity    is 

f|nenfly     reprcHent     a     stand.'inl     of  apt    to  be  iiuire  intolerant    than  that 

morality    far    in    advance    (»f    ai'lual  whicdi       is      despotically       j^overiie<l. 

prnrtieo  nnd  even  of  practic-al  senli-  Moreover    a    (jovernnient    with    wi-ak 

mcnt,  and  mmietimes  tliey  set  im|>os-  executive  inithority  ni;iy  be  very  radi- 


§  188  GAMES  OF  CHANCE.  I73 

A.     GAMBLING. 

§  188.  Justification  of  exercise  of  police  power.— TIk^  evils 
of  iiambliiis"  li^^  i)artly  in  the  possibility  of  impoverishment 
through  wasteful  and  unprofitable  expenditure,  partly  in  the 
demoralising  effect  of  gain  made  without  effort,  and  in  the 
habit,  which  it  fosters,  of  relying  upon  chance  instead  of  upon 
labor  for  acquiring  wealth.  Its  great  attractiveness  makes 
the  evil  a  matter  of  public  concern.  The  constitutionality  of 
measures  against  gambling  is  as  a  matter  of  principle  not  (jues- 
tioned ;  yet  those  who  assert  that  all  forms  of  paternalism 
are  contrary  to  American  constitutional  liberty  must  admit 
that  anti-gambling  legislation  is  paternal  legislation,  protecting 
the  individual  from  temptation  and  restraining  him  from  acts, 
which,  while  hurtful  to  him,  are  not  immediately  offensive  to 
others,  and  while  of  evil  example,  do  not  in  any  way  affect 
any  one  else's  liberty  of  action. 

§  189.  Games  for  pastime  and  recreation.— The  usual  objec- 
tions to  gambling  have  hardly  any  application  where  the  ob- 
ject is  not  gain,  but  recreation  and  pastime,  and  where  there 
are  no  valuable  stakes.  It  has  been  said  that  such  playing  is 
not  gaming  at  all  in  the  legal  sense  of  the  term.-  American 
statutes  invariably  speak  of  gaming  or  playing  for  money  or 
other  property  or  valuable  things,  and  do  not  concern  them- 
selves with  gaming  for  mere  pastime. ^ 

GAMES  OF  CHANCE.     §§  190-191. 

§  190.  Legislation.— At  common  law,  the  mere  playing  of 
a  game  of  chance,  of  whatever  kind,  was  not  regarded  as  an 
offense.^  The  playing  of  servants  and  artificers  was  restricted 
by  Stat.  33  H.  VIII.  ch.  9.  Deceitful  gaming,  which  is  a  species 
of  fraud  rather  than  of  gambling,  was  punished  by  stat.  lU 

t-al  in  its  legislative  measures  which  therefore,    full    of    interest    and    in- 

remain  dead  letters,  while  a  govern-  stniction. 

ment  accustomed  to  a  strict  enforce-  -  Reg.  v.  Ashton,  1  E.  &  B.  l-'SO. 
ment  of  police  laws  will  undertake  to         •"*  Except   in   connection   with   Sun- 
deal    with    immorality    by    measures  day    legislation,    Mass.    Rev.    Laws, 
tending  to  regulate  and  diminish  it,  ch.  9S,  §  2. 

recognising  the  impossibility  of  total  ■»  Jenks  v.  Turpin.  13  Q.  B.  I).  505, 

suppression.      Foreign    legislation    in  1884. 
this    sphere    of    internal    police    is, 


174  PUBLIC   MOKALtt-GAMBLING.  §  191 

Car.  II.  ell.  7,  which  also  .subjected  the  -\vmuer  of  more  than 
£100  at  one  sitting  to  an  action  of  recovery  and  forfeiture.  The 
latter  policy  was  extended  to  winnings  exceeding  £10  by  stat. 
9  Anne  eh.  14,  and  the  same  statute  made  provision  for  requir- 
ing persons  supporting  themselves  by  gambling  to  find  sureties 
for  their  good  behavior.  A  number  of  specified  games  of  haz- 
ard were  forbidden  by  statutes  of  George  11.^  The  statute  of 
8  and  9  Vict.  ch.  109  makes  all  wagering  contracts  void. 

The  rule  that  all  wagering  and  gambling  contracts  are  void 
has  been  established  by  statute  in  most  American  states.^  Fol- 
lowing the  statute  of  Anne,  winnings  exceeding  a  specified 
amount  at  one  sitting,  sometimes  winnings  irrespective  of 
amount,  are  made  recoverable  by  the  loser,  in  some  states 
with  an  additional  forfeiture.  The  odious  provision  of  the 
English  statute"  allowing  a  treble  recovery  by  any  informer  if 
the  loser  does  not  bring  action,  has  been  adopted  in  a  number 
of  states.**  Not  uncommonly,  moreover,  recovery  of  losses  is 
also  allowed  against  the  owner,  tenant  or  occupant  of  the 
I)remises,  avIio  knowingly  allows  them  to  be  used  for  gambling, 
even  in  favor  of  the  informer.^  A  public  prosecution  of  per- 
sons who  play  for  iikiih'v  without  aggravating  circumstances  is 
allowed  in  Illinois,'"  lint  not  in  Massachusetts  or  New  York.'' 
Texas  prohibits  the  phiying  at  a  game  of  cards  at  any  place  but 
a  private  residence  occupied  by  a  family.' - 

J;  191.  Aggravating  circumstances.  — The  following  aggra- 
vating conditions  in  connection  with  gambling  have  become  llie 
subject  of  legishil  imi  : 

(a)  Coiiiiiioii  Lf.iniblcis.  The  statute  of  Ann«»  provided 
MieaHures  against  pei'sons  supporting  themselves  by  gambling, 

and    the    Revised    Stnlutes    of    Xew    Vol'lc'-'    deelni-e    llieiii    to    be 

»  12  Oeo.  II,  rh.  'JS,  l.'i  (}.•,,.  II.  ■  h.  i"(riin.  CcmIc.  §  Il'(;. 

!!'.    18  Geo.   II.  r\\.  :m  ;    ilic   forl)i<l<l('M  II  As   Id   oiiliiinncr   pniiisliin;^  K-""" 

yaiiu-M    wcTf    lia/.ani,    m-v    of    licarls,  iiij;   for  money   in   )irivale  piac.CH  una 

faro.    linxMi't,    roiilol,    and    all    ^jaim-s  (JrcciivilJe   v.   Kemini.s,   .'58  S.  C.  4-7, 

with  <1ir«>  oxcept   hackjjaiiiinon.  :,[)  |,.  H.  A.  72ri. 

"StiinHon    Amoriran   Statiilr    I,;i\v,  i-  l'<ii;ii  (lode  Act,  379,  as  .•mimd 

Ml'l-.  r.l     I'.Mil.   Hankiiis  v.  State,  7L'  S.   W. 

7  Alxii    fi.ini.l    ill    .1  iiHtiiiian 'h    ('ode,  l'.t|. 
^   •••■••   '  '••'  I      U'cv.     St.it.     (i;?,S,     .also    (!ode 

"Htimmin,  i  4i:tL'H.  i  ilm.   I'mc,  §  Miiii. 

"Trout  V,  Marvin.  <•:.•  nli.  .st.   Kij, 
M  N.  K.  <\r,r,,  Mifio. 


§  191  GAMES  OF  CHANCE.  I75 

disorderly  persons,  and  under  most  criminal  codes  such  persons 
would  fall  under  the  definition  of  vainrants  and  va<^abonds,  or 
would  be  guilty  of  criminal  idleness.'^  In  Indiana  and  Ken- 
tucky, being  a  common  gambler  is  made  a  specific  offense.*'' 

(b)  Gambling  in  public  places. — The  act  of  gambling,  if 
not  otherwise  made  punishable,  may  be  prohibited  in  stated 
places,  especially :  public  conveyances,  public  inns  or  taverns, 
or  places  where  liquor  is  licensed  to  be  sold,  buildings  devoted 
to  ])ublic  or  quasi-public  purposes,  and  at  or  near  places  where 
public  meetings  are  lield.^^ 

(c)  Keeping  places  for  gambling.— The  law  especially  pro- 
vides against  those  who  make  a  profit  out  of  the  gambling 
of  others,  since  their  interest  is  to  encourage  the  practice,  and 
they  do  actually  encourage  it,  by  providing  special  facilities. 
It  is  characteristic  of  the  methods  of  the  police  power  that  it 
attacks  the  evil  at  a  stage  previous  to  its  actual  appearance, 
and  by  measures  directed  against  those  who  are  not  themselves 
affected  by  its  influence;  for  the  keeper  of  a  gambling  house 
need  not  to  be  a  gambler  himself^'^  and  his  business  is  as  far  as 
his  own  profits  are  concerned  less  speculative  than  many  others. 

The  keeping  of  a  common  gaming  house  was  an  indictable 
nuisance  at  common  law^^  and  was  also  dealt  with  ^y  the  Star 
('hamber,^''  and  is  specially  prohibited  by  the  statute  of  8  and  I) 
Victoria  ch.  109.  On  the  continent  of  Europe  public  gambling 
houses  were,  in  former  times,  often  kept  under  special  authoi-- 
ity  in  watering  places;  in  Germany  they  have  all  been  sup- 
pressed, and  in  Belgium  legislation  for  the  same  purpose  was 
enacted  in  1901.  The  principality  of  Monaco  still  derives  its 
revenues  from  such  an  establishment.  American  statutes  gen- 
erally forbid  the  keeping  or  letting  of  rooms  or  other  places 
for  the  purposes  of  gambling;  but  we  also  find  prohibited  the 
keeping,  for  gain  or  hire,  of  any  apparatus  commonly  used  for 
any  game  of  chance.  The  statutes  of  Illinois  and  ^Massachusetts 
contain  provisions  against  tavern  keepers  "or  other  persons" 

n  See     §  97,     supra;     Mass.     Kev.  it  But  in  New  York  he  is  designat- 

Laws,  ch.  212,  §  46,  ch.  214,  §  2.  ed  as  a  common  gambler,  Penal  Code, 

isBowe    V.    State,    25    Ind.    415;  §344. 

Com.     V.     Hopkins,     2     Dana,     418.  isjenks    v.    Turpiu,    18    Q.   B.    I). 

leN.  Y.  Penal  Code,  §336;   Mass.  505. 

Eev.  Laws,  ch.  212,  §  31.  "  Hudson's  Treatise,  p.  110. 


176  PUBLIC    MOKALb-liAAiBLiMU.  §  192 

keeping  such  apparatus  for  the  purpose  of  having  the  same 
used  for  gaming  for  money .-^ 

Recent  statutes  have  provided  in  many  cases  against  novel 
devices  for  gambling  as  e.  g.,  against  slot  machines  upon  which 
money  is  staked  or  hazarded. ^i  These  do  not  establish  any 
new  principle. 

GAMES  OF  SKILL  AND  CONTESTS.     §§  192-195. 

§  192.  Playing  for  money.— Games  of  skill,  in  addition  to 
serving  the  purpose  of  recreation  and  entertainment,  are  valu- 
able in  exercising  various  faculties,  and  hence  are  often 
treated  differently  from  games  of  chance.-^  The  statute  of 
George  II  forbidding  games  with  dice  excepted  backgannuon, 
and  a  similar  exception  has  been  recognised  in  Alabama,-^  and 
sometimes  statutes  confine  their  provisions  to  games  of 
chance."'*  But  generally  measures  against  playing  for  money 
apply  to  games  of  skill,  such  as  chess,  billiards  and  bowling.^^ 
A  question  may  then  arise  as  to  what  playing  for  money  is, 
and  there  is  a  conflict  of  authority  on  this  point,  where  the 
agreement  is  that  the  loser  is  to  pay  for  the  use  of  the  billiard 
tabic.  Among  others  the  courts  of  Massachusetts^^  and  Ohio-^ 
hold  that  this  is  playing  for  money.  The  courts  of  New  York,^*' 
New  Jersey-''  and  Illinois^"  hold  that  it  is  not.  The  latter 
opinion  seems  to  be  in  accordance  with  the  spirit  of  the  law, 
which  can  serve  no  legitimate  object  in  discouraging  playing 
where  the  element  of  profit  does  not  enter  into  the  attraction  of 
the  game.  Upon  a  similar  principle  it  is  held  not  to  be  gaming 
where  the  stake  is  a  prize  which  is  sought,  not  for  its  pecuniary 
value,  liiil  for  the  honor  which  it  bestows,  as  e.  g.,  a  racing 
j-np.-'"  Cuiiipeting  even  for  a  money  prize,  purse,  or  premium, 
is  iM»f  ganililing  where  the  prize  is  offered  by  a  third  party, 
and  the  mere  payment  of  entrance  fees  which  go  to  the  associa- 

I"  MasH.  Rev.  L.,  cb.  214,  §  :?;    III.  -Jo  Murphy    v.    Ilogcr.s,    1.^)1     Mass. 

Crim.  Co<lo,  9  128.  Ms. 

2>  llliiK.iH    Art    of    1895;     N.     Y.  -- \V;inl    v.    State,    17    Oh.    St.    32, 

liawH,  iHini,  cb.  CM.  .:h  i>(,„pl,.    v.    ForboH,    52    Hum     :W. 

23  8o  nlHo  in  the  Uonian  Law,  Dig.  2"  Statn  v.  Tlall,  32  N.  J.  L.  158. 

11,  n,  2,  3.  .1"  IIarl):iuf,'h  v.  People,  10  III.  294. 

t«  Wi'tmor.'  V.  Staff.  55   Al:i.    I'.ts.  ''i  WilkiiiHon    v.    Stitt,    175    MaHB. 

-♦  N.  Y.  Penal  Co.lo,  8  33(5,  310.  5M|,  .'",(;   N.  10.  830;   Wcat  v.  Carter, 

»  Higfl  V.  .Tcbb,  3  Htark.  1,  1820.  129  III.  249. 


§193  GAMES  OK  SKILL.  I77 

tion  offering  the  prize,  does  not  make  these  fees  stakes  put  up 
by  the  competitors  unless  the  prize  is  made  up  entirely  of 
such  fees.3-  -phe  statute  of  8  and  9  Victoria  making  void  all 
wagering  contracts  expressly  excepts  subscriptions  to  con- 
tribute towards  a  prize  for  the  winner  of  any  game,  sport, 
pastime  or  exercise.^-'' 

§  193.  Billiard  tables  and  bowling  alleys.— Since  the  keep- 
ing, for  hire,  of  gaming  apparatus,  is  only  prohibited  if  the 
same  is  intended  to  be  used  for  playing  for  money,  there  is 
usually  no  difference  made  between  games  of  chance  and  games 
of  skill.  The  statute  of  33  H.  VIII.  ch.  9  prohibited  the 
keeping  of  places  for  bowling,  but  this  was  repealed  by  8  and 
9  Victoria  ch.  109.  In  this  country  it  has  been  strongly  ques- 
tioned whether  the  keeping  of  bowling  alleys  would  constitute 
a  nuisance  per  se  at  common  law.^^  A  New  York  statute  pro- 
hibiting billiard  tables  in  houses  kept  as  inns  or  taverns,^^ 
though  re-printed  in  the  latest  revisions,  seems  to  have  fallen 
into  disuse. ^^  In  Illinois,  while  the  power  of  cities  over  gaming 
and  gaming  houses  and  lotteries  is  simply  one  of  suppression, 
they  are  authorised  to  license  and  regulate,  as  well  as  to  pro- 
hibit and  suppress,  billiard  tables  and  bowling  alleys.^"  A 
power  to  suppress  and  restrain  gaming  has  been  interpreted 
to  authorise  the  licensing  of  billiard  tables. ^*^  The  legislative 
power  to  suppress  the  keeping  of  such  places  for  hire,  does  not 
appear  to  be  subject  to  doubt.^^ 

§  194.  Horse  races.— Horse  racing  has  become  the  subject 
of  legislation  chiefly  on  account  of  the  fraudulent  and  gambling 
practices  connected  with  it.  Racing,  in  itself,  is  tolerated  or 
legalised  as  a  means  of  improving  the  breed  of  horses,  while 
a  race  run  for  a  prize  or  premium  set  by  some  third  party 

32  Harris  v.  White,  81  N.  Y.  532 ;  39  state  v.  Noyes,  30  N.  H.  279 ; 
Dudley  v.  Flushing  Jockey  Club,  14  State  v.  Hall,  32  N.  J.  L.  158;  Com. 
Misc.  N.  Y.  58.  v-  Goding,   3  Mete.   130.     Otherwise 

33  §  18  of  act.  as    to    "  keeping    billiard    tables, ' ' 

34  State  V.  Hall,  32  N.  J.  L.  158 ;  which  would  include  private  owner- 
contra:  Tanner  v.  Albion,  5  Hill  ship.  It  has  been  held  that  this 
121;   State  v.  Haines,  30  Me.  65.  cannot  be  made  to  depend  upon  the 

35 1  Eev.  Stat.  661,  §  6.  payment    of    a    heavy    license    fee. 

36  People  V.  Forbes,  52  Hun   30.  Stevens  v.  State,  2  Ark.  291,  35  Am. 

37  City  Act  V.  1,  No.  44,  45.  Dec.  72. 

38  Ee  Snell,  58  Vt.  207. 

12 


178  PUBLIC   MORALS— GAMBLING.  ^  195 

does  not  constitute  gambling.^"  A  race  is  held  to  be  a  game 
within  the  statutes  forbidding  or  avoiding  bets  on  games.'*^ 
Early  New  York  statutes  declared  all  races  not  expressly  au- 
thorised by  law  to  be  public  nuisances.-*^  This  provision  was 
repealed  by  a  general  repealing  act  of  1886,  leaving  the  sub- 
ject without  regulation.  A  comprehensive  regulatioji  was  un- 
dertaken in  1895.^^  The  formation  of  corporations  for  the 
raising,  improving  and  breeding  of  horses  is  authorised,  and 
such  corporations,  the  owners  of  horses  and  others  who  are  not 
participants  in  the  race,  may  contribute  towards  the  making  up 
of  purses,  prizes,  etc.,  to  be  contested  for  by  the  OAvners  of 
horses.  These  corporations  may  hold  races  upon  obtaining  a 
license  from  the  state  racing  commission,  created  by  the  act; 
the  races  being  subject  to  specified  rules.  All  races  not  au- 
thorised by  the  act.  for  stakes  or  rewards,  are  declared  public 
nuisances.  Betting  upon  the  result  of  any  race  is  prohibited, 
and  any  money  or  property  staked  is  forfeited  to  the  other 
party  or  to  the  depositor.  The  act  does  not  make  betting  oh 
the  race  a  penal  offense,  but  the  keeping  of  a  betting  place  is 
contrary  to  the  act,  and,  moreover,  covered  by  the  provisions 
of  tbc  IVnal  Code.-»-« 

Many  si)ecial  provisions  regarding  races,  especially  prohib- 
iting fraudulent  entries,  are  to  be  found  in  the  Session  Laws 
of  the  various  states  in  recent  years.  New  Jersey  enacted 
elaborate  legislation  in  ISf);^  and  repealed  it  in  1894.  Indiana 
ill  KS95  imi)osed  considerable  limitations  regarding  the  period 
of  the  year  and  the  length  of  time  during  which  races  should 
he    ;illnw('d    to    he    licM.'f' 

§195.  Betting.  -A  bet  or  wager  is  the  act  of  two  or  more 
persons,  by  wliicli  each  stakes  something  of  vahie  upon  the 
correetnes.s  of  an  assertion,  opposite  to  that  of  the  other  party, 
or  pjirlies,  the  friith  being  ohjeetively  or  subjectively  uncertain 
at  Ihr  tiiiH'  the  brt  is  made.  'I'he  assertion  m.iy  involve  cah'U- 
Ifttioii  ami  judgmenl.  in  which  ease  the  bel   i-esenibles  a  e.onlesi 

«"  Pooplp    ox    rol.    SliirniH    v.     Fal-  iii.in   \.  S(r;i(lcr.  L'.'J   III.  493;    Wilkin- 

Ion,    IfiJ    N.    V.    \2,    4«J    N.    10.    L'".t(i;  sou   v.  Tduslcy,    1(5  Minn.  lili.'J. 

MnrriM  v.  White,  81  N.  Y.  532.  '     I   iC<-v.  Stat.,  672,  §55. 

♦'  Hliixton     V.    Pyp,    2    Wiln.    :U)S(.  •"  < 'luiji.  .""iTO,  Laws  189!3. 

17WJ;     KlliH    V.    n..iilo.    IS    M,..    :U7;  ^'IVniil   Cido,   §  :{4:?. 

<  lM>«m«.m  V.  Htiilc.  S   Mhirk   .",:!•;   T:,r  •••  Htiifc  v.    Koby,    IlL'    lixl.   l!()M.   IVA 

I..   U.  A.  L'i;{. 


§  195  BETTING  179 

of  skill,  or  the  correctness  or  incorrectness  of  the  assertion  may 
be  matter  of  chance. 

Bets  or  wagers,  unless  in  some  special  manner  violating,' 
order  or  decency,  were  in  England  regarded  as  enforceable  by 
civil  action,'*^  and  the  same  rule  was  adopted  in  American 
states,  though  sometimes  with  expressions  of  regret.'*' 

Bets  on  games  are  uniformly  treated  by  statute  like  gambling, 
and  in  many  states  all  betting  and  wagering  contracts  are  made 
unenforceable.^'^  Statute  8  and  9  Victoria  ch.  109  makes  the 
keeping  of  betting  places  unlawful,  and  not  merely  the  keeping 
of,  but  the  presence  for  the  purpose  of  betting  at,  places  for 
registering  bets  on  games,  contests,  etc.,  is  made  an  offense  in 
Massachusetts.^^ 

Betting  has  received  special  legislative  attention  in  connec- 
tion with  horse  races.  As  before  stated,  a  horse  race  is  a  game 
within  the  provisions  of  the  law  forbidding  betting  on  games, 
and  a  statute  against  keeping  betting  places  will  apply  to  bets 
on  horse  races.^*^  i\Iany  states  have  enacted  statutes  against  bet- 
ting, book-making  or  pool-selling  on  races.^^  In  some  cases. 
however,  an  exception  is  made  in  favor  of  the  inclosures  of 
track  or  fair  associations.-^-  In  Illinois  it  has  been  held  that 
such  an  exception  leaves  the  bet  made  on  the  race  track  to 
the  prohibition  of  the  general  statutes."'-^  Otherwise  such  an 
exception  would  present  the  constitutional  problem  of  a  legis- 
lative sanction  given  to  one  form  of  gambling,  if  carried  on 
at  specified  times  and  places.^'*  In  New  York,  where  the  con- 
stitution forbids  the  authorising  or  allowing  of  any  pool-selling, 
book-making,  or  other  kinds  of  gambling  within  the  state, 
the  making  and  recording  of  bets  upon  a  race-course,  and  at 
a  race  authorised  by  law,  is  visited  with  the  exceptionally  mild 

4c  Bulling    V.    Frost,    1    Esp.    235,  sa  Tennessee,  1891 ;  Missouri,  1895, 

1795;  McAllister  V.  Haden,  2  Campb.  held    unconstitutional    in     State     v. 

438,    1810;     Hussey    v.    Crickett,    3  Walsh,  136  Mo.  400,  37  S.  W.  1112. 

Campb.  168,  1811.  35   L.   R.  A.   231;    a  similar  act  of 

47  Dewees  v.   Miller,  5  Harr.   347;  1S97,    however,    was    upheld    on    the 

Johnson  v.  Fall,  6  Cal.  359;  Beadles  ground    that    by   that    act   a    license 

V.  Bless,  27  111.  320.  was   required   for   the   legalised  bet- 

4S  Stimson,  §  4132.  ting.     State   v.   Thompson,    180   Mo. 

*'•>  Mass.  Rev.  L.,  ch.  214,  §  5,  23.  333,  54  L.  R.  A.  950. 

soSwigart  v.  People,  154  111.  284,  ss  Swigart  v.  People,  154  III.  284, 

40  N.  E.  432.  40  N.  E.  432,  1895. 

51  So  Illinois  by  Act  of  1887.  ^4  See  §  730,  infra. 


180  PUBLIC  MOKALS- GAMBLING.  §  196 

penalty  of  the  forfeiture  of  the  stake,  while  book-making  and 
pool-selling  in  general,  are  made  felonies.  This  has  been  held 
constitutional  upon  the  ground  that  the  courts  cannot  control 
the  legislative  discretion  as  to  the  effectiveness  of  any  measure, 
which  in  any  degree  tends  to  counteract  the  evil  dealt  with.^^ 
It  was  the  obvious  purpose  of  the  New  York  legislature  to 
give  a  covert  sanction  to  betting  on  race  tracks,  and  it  is  inter- 
esting to  note  in  this  connection  that  a  select  committee  of 
the  British  House  of  Lords  upon  the  subject  of  betting  has 
recently  made  a  report  in  which  it  expresses  its  conviction 
that  it  is  impossible  altogether  to  suppress  betting,  and  its 
belief  that  the  best  method  of  reducing  the  practice  is  to 
localise  it,  as  far  as  possible,  on  race  courses,  in  definite 
inclosures  and  other  places  where  sport  is  carried  on.  The 
same  report  also  shows  that  the  suppression  of  betting  places 
has  only  resulted  in  driving  the  book-makers  to  the  streets, 
thereby  greatly  extending  the  evil.^*^ 

LOTTERIES.     §§  196-198.1 

§  196.  Authorised  lotteries.— Lotteries  have  been  distin- 
guished from  other  forms  of  gambling  ]\y  the  fact  that  they 
were  in  former  times  universally  used  as  sources  of  public 
revenue,  and  were  also  under  public  authority  resorted  to  for 
the  purpose  of  raising  funds  for  benevolent  and  otherwise 
laudabk'  enterprises.  If  used  as  sources  of  public  revenue 
tlii-y  might  eitiicr  be  set  on  foot  by  the  state  directly  or  the 
privilege  to  arrange  a  lottery  might  be  granted  for  a  con- 
sideration to  an  individual  or  a  private  company.  Thus  we 
find  in  17'J1  an  act  of  the  Province  of  New  York  prohi])iting 
the  rafiling  of  goods  with  ;ni  exception  in  favor  of  one  William 
Lake,  who  holds  a  license  from  the  government,  and  in  1740, 
an  act  establishing  a  lottery  to  raise  £2,250  for  the  founding 
(»f  a  college.  A  long  list  of  lotteries  authorised  in  Virginia 
is  given  in  JefTerson's  works,  Vol.  10.  p.  l^Gr),  and  under  an  act 
(»f  congress  of  May  4,  1H12,  tlie  i-it y  of  Washington  had  power 
to  authorise  the  drawing  of  lotteries  to  effect  improvements 
in  the  city.-     As  long  ms  lotteries  existed  under  governmental 

"  Poopli"  ex  rol.  StiiTKiH  V.  Falhui,  i  Hon   .loliii    Ti.    Tliotiuis,    liottorios, 

162   N.    Y.    1,   4fl    N.    K.   30L'.      LawH  I'miids  an<l   Olmcenity   in  tlic   Mails, 

18W,  ch.  .170,  9  17.  1900. 

f'l  London    Timo«     (weekly    cdn.),  See,  rIho,  5  nG.I  infra. 

July   11,   lUOi:.  -Tlark  v.  WaHhington,  I'J  Wli.  40. 


§  197  LOTTERIES.  lyl 

auspices  the  law  distinguished  between  authorised  and  unau- 
thorised or  illegal  lotteries,  the  latter  being  declared  nui- 
sances, and  the  sale  of  tickets,  the  publication  of  accounts,  etc., 
being  forbidden  with  regard  to  the  same;  a  license  was 
required  for  selling  the  tickets  of  authorised  lotteries.-*  This 
system  now  exists  in  many  European  states,  even  in  so  en- 
lightened a  community  as  Prussia.  The  argument  for  the  con- 
tinuation of  public  lotteries  is,  that  since  the  gambling  instinct 
is  ineradicable  it  had  better  be  controlled  by  the  state  and  the 
profits  from  it  applied  to  public  uses.  The  state  attempts  to 
a  certain  extent  to  reduce  the  evils  of  gambling  by  prohibit- 
ing the  solicitation  of  custom  and  denying  a  right  of  action 
for  tickets  sold  on  credit.  England  abolished  state  lotteric^s 
in  1826,  but  later  on  allowed  lotteries  in  favor  of  art  unions 
under  Order  in  Council.'*  In  America  lotteries  are  now  pro- 
hibited in  all  states,  generally  by  the  constitution,  the  last 
states  to  abolish  lotteries  having  been  Kentucky  and  Louisiana. 

§  197.  Definition  of  a  lottery.— A  lottery  is  defined  by  the 
penal  code  of  New  York  as  a  scheme  for  the  distribution  of 
property  by  chance  among  persons  who  have  paid,  or  agree 
to  pay,  a  valuable  consideration  for  the  chance.^  The  Su- 
preme Court  of  the  United  States,  in  a  leading  case^  cites 
other  definitions  from  standard  dictionaries  which  have  in 
common  the  element  of  distribution  of  prizes ;  where,  however, 
only  one  object  is  to  be  rafSed,  it  is  not  possible  to  speak  of  a 
distribution  of  property,  and  yet  the  scheme  is  in  all  essential 
respects  a  lottery.  The  Century  Dictionary  speaks  of  "a 
scheme  for  raising  money  by  selling  chances." 

Every  lottery  should  combine  at  least  the  two  elements  of 
chance  and  possible  gain.  Where  tenants  in  common  agree  to 
divide  property  by  lot  and  the  shares  are  of  equal  value,  or 
very  nearly  so,  there  is  no  lottery."^  Otherwise  where  there 
is  an  allotment  of  lands  of  unequal  value.^ 

§198.  Gifts  to  attract  custom^'— question,  whether  chance 
paid  for  or  not.— Where,  upon  making  a  purchase,  the  pur- 

3  N,  Y.  Rev.  Stat.  I,  p.  664-672.  "  Elder  v.  Chapman,  176  111.  142. 

4  9  &  10  Vict.  cli.  48.  ®  Wooden  v.  Shotwell,  23  N.  J.  L. 

5  §  323.  465 ;  Seidenbender  v.  Charles,  4  S.  & 
fi  Horner  v.  United  States,  147  U.  R.  151. 

S.  449.  °  See,  also,  §  293. 


182  PUBLIC  MORALS-GAMBLING.  §  198 

chaser  receives  together  with  the  object  bought  a  ticket,  check 
or  stamp,  which  entitles  him  to  select  some  other  articles,  the 
transaction  is  without  any  element  of  chance,  but  simply  a 
form  of  attracting  custom.^"  Otherwise  where  the  additional 
ffift  is  awarded  bv  chance.  In  the  latter  case  there  is  a  gift 
enterprise,  which  the  constitutions  generally  prohibit  in  con- 
nection with  the  prohibition  of  lotteries.  In  Massachusetts 
it  is  held  that,  although  the  additional  gift  does  not  depend 
upon  chance,  the  gift  sale  appeals  to  the  gambling  instinct 
and  may  therefore  be  prohibited,  if  the  nature  of  the  prize  is 
not  known  at  the  time  of  making  the  purchase.^' 

Where  the  winner  is  determined  solely  by  merit  there  is  no 
lottery:  so  in  most  competitions  for  prizes;  but  if  skill  merely 
narrows  down  the  number  of  competitors  between  whom 
chance  will  finally  determine  the  award  of  the  prize,  the  scheme 
will  be  a  lottery;  so  in  the  missing-word  contest.^- 

The  definition  of  the  New  York  penal  code  also  includes  as 
an  essential  element  that  the  chance  should  be  paid  for.  It 
has  been  held  that  the  giving  away  of  a  prize  for  successful 
guess,  merely  as  an  advertising  scheme,  is  not  a  lottery.^  ^  So 
the  disposition  by  lot  of  public  lands  of  the  United  States  on 
the  Kiowa-Comanche  reservation  on  July  29,  1901.  was  not  a 
lottery. 

In  many  cases  the  prize  is  apparently,  but  not  in  reality, 
given  away :  namely,  where  the  chance  goes  with  an  article  pur- 
chased,'^ or  with  an  entrance  ticket  to  a  concert  or  art  or 
other   exhibition,   or   with    a    government   or   corporate   bond 

1  preiiiiiiTii  loans).  Such  schemes  are  generally  held  to  be  within 
the  slalulory  prohibilionj^'  New  York  and  California  Inking 
a  contrary  view  witli  regard  to  preminm  loans.'"  The  courts 
seem  to  decide  this  fpiestioii  as  if  the  ]>i-i/e  were  i-ealiy  given 

1"  People    V.    fiill.son,     101»     N.     \.  "  Loliniaii    v.    State,    SI     lii«l.    l.'i; 

3H0;    State    v.    Daltnn,    T^    I?.    I.    77.  ITikIc'Ihoii    v.    State,    •)»    Iii-I.    4L'(i. 

40  At  I.  2.34.  ir-S.'c    TTonier    v.     United    States, 

>>  Comnioinvcaltli   v.    Kincrsoii, '  Ifi'i  147   U.   S.  441>,  aii<l   aiitlieritioH  here 

Mnwi.    140,  4'J    X.    10.   .I-W;    ("ominuie  cited;    State    ex    rel.    Att'.y    (ieii '1    v. 

«<a!th   V.   HiHHon,   178   Mass.   .')7H,  00  IntorHtato    Saviii;;H     rnvestmont     Co., 

N.  B.  385.  (■>)  Oil.  St.  L's:!.  (id  X.   ]•].  L'2n,  .'52  L. 

wBnrrlny    v.    Peam.n.    I,,    li.     'W.  ]{.  A.  r,:w. 

2  Ch.   l.''>4.  iiKcdiii  V.   Koelder.  iU!  \.    V.  'M\\l; 
itCronn  v.  Pfople.   18  Col.  321,  30  ex  p.  Sliohert,  70  Cal.  032. 

Am.     St.      1{<|>.      2512;     «cc,     cnntrn, 
ThomjiH,  op.  cit.   p.   21-.3.'5. 


§  199  SPECULATION.  1^3 

without  consideration,  the  participators  in  the  chance  receiving 
full  value  for  their  money  irrespective  of  the  chance.  There- 
fore such  a  scheme  is  held  to  be  only  "in  the  nature  of  a 
lottery "^'^  or  "a  similar  enterprise  offering  prizes  depending 
upon  lot  or  chance.  "^^  In  order  to  come  under  the  statute 
of  New  York,  payment  for  the  chance  is  essential,  but  there 
can  be  no  doubt  that  the  purchaser  of  an  article,  ticket,  or 
bond,  in  reality  pays  for  the  chance  by  an  increased  price,  a 
reduced  rate  of  interest,  or  diminished  security. 

The  statutes  against  lotteries  prohibit  and  punish  not  only 
the  arranging  of  lotteries,  but  the  selling  of  tickets,  and  all 
advertisements  relating  thereto.^ '-^  Purchasers  of  tickets  are 
punishable  only  where  the  possession  of  a  ticket  is  made  an 
offense.^^ 

The  United  States  has  legislated  against  "lotteries,  gift  con- 
certs, and  similar  enterprises"  by  prohibiting  the  importation 
from  abroad,  the  carrying  from  state  to  state,  and  the  mailing, 
of  tickets,  lists  of  drawings,  advertisements,  or  newspapers 
containing  advertisements  concerning  the  same.^^  The  con- 
stitutionality of  this  legislation,  as  far  as  importation  is  con- 
cerned, is  unquestioned;  as  regards  interstate  traffic  it  has 
been  upheld  on  the  ground  that  such  prohibition  is  regulation 
of  commerce,22  and  as  regards  exclusion  from  the  mails,  has 
been  sustained  in  analogy  to  the  exclusion  of  obscene  matter.-^ 

SPECULATION.      §§  199-203. 

§  199.  Legitimate  speculation.— The  element  of  uncertainty 
of  gain  or  loss  enters  into  most  business  transactions,  but  the 
uncertainty  or  chance  is  not  the  controlling  feature  of  ordi- 
nary transactions.  Where  it  is  the  principal  motive  we  speak 
of  speculative  business  or  speculation.  It  differs  from  gam- 
bling by  the  fact  that  it  is  an  incident  to  an  otherwise  legiti- 
mate form  of  dealing,  namely,  the  purchase  and  sale  of  prop- 
erty, and  that  the  profit,  if  any,  is  received  in  return  for  a  full 
equivalent  given. 

The  circumstance  that  payment  is  primarily  dependent  upon 

iTBallock   V.   State,    73   Md.    1,    8  Sept.    19,   1890,   I.   Suppl.    803,   Act 

L.  E.  A.  671.  Mch.  2,  1895,  II.  Suppl.  435. 

18  Federal  Act  Sept.  19,  1890.  22  Champion   v.    Ames,    188   U.   S. 

19  N.  Y.  Penal  Code,  §§  326,  327.  321.     (The  Lottery  Case.) 

•   20  Ford  V.  State,  85  Md.  465.  "in  re  Eapier,  143  U.  S.  110. 

21 U.    S.   Eev.    Stat.    §    3894,    Act 


2^4  FUBLIC   MUlJALb-LiAMBLiNG.  §  200 

an  uncertain  future  event  characterises  two  kinds  of  business 
transactions,  bottomry  or  respondentia  loans,  and  insurance 
or  indemnity  contracts.  The  bottomry  loan  is  sanctioned  by 
the  custom  of  maritime  laws.  In  an  insurance  contract  the 
insured  is  not  expected  to  make  a  profit,  but  merely  to  be 
reimbursed  for  his  loss,-^  while  on  the  part  of  the  insurer  the 
large  number  of  chances  goes  far  toward  eliminating  the  ele- 
ment of  uncertainty  in  accordance  with  the  doctrine  of  proba- 
bilities. Respondentia  and  insurance  serving  highly  useful 
economic  ends,  are  universally  excepted  from  the  prohibitions 
of  gambling,  expresssly  or  by  implication  ;-•"'  but  the  special 
control  which  the  state  exercises  over  the  insurance  business 
may  in  part  at  least  be  justified  by  the  fact  that  it  may  become 
gambling,  unless  conducted  on  a  sufficient  scale  and  upon  sci- 
entific principles. 

The  jiurchase  and  sale  of  growing  corn  is  likewise  a  legiti- 
mate though  speculative  transaction,  and  cannot  be  regarded 
as  gambling,-"  but  it  was  formerly  looked  upon  as  a  trans- 
action by  which  the  peasant  was  apt  to  be  oppressed  or  over- 
reached, and  was  forbidden,  or  regulated  as  to  price,  in  Ger- 
many and  France.  This  legislation,  however,  has  been  abro- 
gated.-" 

§  200.  Stock  and  produce  speculation.— The  speculative  na- 
ture of  dealings  in  commodities  assumes  an  aspect  of  especial 
interest  where  values  are  subject  to  considerable  fluctuations, 
iiiid  the  metiiods  of  dealings  are  so  organised  as  to  facilitate 
transactions  to  the  utmost.  This  is  the  case  of  the  business 
dom-  at  stoek  and  ])ro(Ince  exchanges  and  boards  of  trade,  in 
Blocks  jind  bonds,  metals  ;ini|  exchange,  ;ui(l  pi-oduee  of  dif- 
fiTcnt  kinds.  Speculation  of  this  kind  is  nol  without  its 
econoinic  benefits,  since  the  concentration  oi"  sui)ply  and  de- 
niarid  has  the  cfT'ect  oC-  making  market  prices  tluoughont  the 
community  uniform  and  easily  ascertainabl(\  and  the  price 
fixed  l)y  active  bidding  and  asking  is  apt  to  corr(^spond  to  the 
true  value  of  (he  commodity;  hut  varions  phases  of  it  lend 
fhi-iiiHclvoH  easily  to  the  purpf)se  of  giiml)ling. 

2«  KsikU'    InBiirnncfi   Co.    v.    Lafjiy-  l.iltitcil    all    fontrat'tH    nf    assunincfi 

Pttc   \nn\irtuut'  Ct,.,  {t    Ind.  -M.'?.  b)    way  <•('  trsoniiifi  or  waycrinn. 

"•Now     York     IVnal     f'odn     Hnc.         an  Simliui  i,     v.     I'.cncli.t,     7H     111. 

'M\  ni.  Trim,  Co.lo  Sec  I.'IJ.  mj). 

^.....  .,.    ,0   f;^„     ij^   ,.j,j^     ,^-^    j^^^^  -'T  Fr,.,,,!,    T,;i\v    July    9.    1SS9;     in 

(!<TMi:iiiy  by  local  statutes. 


,.\ 


200  SPECULATION.  Iy5 


Buying"  and  selling  for  future  delivery  has  been  regarded 
with  suspicion  where  the  seller  at  the  time  of  making  tin* 
contract  did  not  own  what  he  sold,  but  a  decision  holding  such 
contracts  to  be  void^^  was  later  on  disapproved,  and  their 
legality  established.^'^ 

Such  dealing  in  futures  may,  however,  be  used  for  a 
manipulation  of  prices  which  would  answer  the  description 
of  engrossing  or  forestalling,  declared  illegal  by  a  series  of 
older  statutes.2"  Where  the  buyer  contracts  for  more  than 
the  seller  can  possibly  procure  in  the  open  market,  accumulat- 
ing the  available  supply  in  his  own  hands,  and  thus  forcing 
the  seller  to  buy  from  him  at  an  inflated  price  in  order  to 
perform  his  contract,  we  speak  of  a  corner  in  the  market.-"'^ 

A  contract  by  which  a  person  secures  the  privilege  to  buy 
or  not  to  buy,  or  to  sell  or  not  to  sell,  at  a  future  time,  is  termed 
an  option.  It  is  commonly  used  for  purposes  of  speculation, 
but  may  serve  legitimate  purposes,  so  where  the  proposed 
buyer  desires  the  property  only  upon  a  contingency,  and 
wishes  to  insure  himself  against  a  rise  of  a  price  until  the 
contingency  is  determined. 

An  option  contract  as  well  as  a  contract  for  future  delivery 
may  be  made  without  any  intent  to  perform  at  any  time,  or 
without  reference  to  actual  commodities,  for  the  sole  purpose 
of  awaiting  the  day  set  for  purchase  or  sale,  and  then  settling 
the  difference  between  contract  and  market  price.^^  Since  the 
only  amoimt  in  reality  involved  is  the  amount  of  possible 
fluctuation  in  values,  dealings  of  great  magnitude  are  fre- 
quently carried  on  through  the  interposition  of  brokers  upon 
an  investment  representing  simply  the  possible  margin  of  loss. 

While  it  is  frequently  difficult  to  determine  whether  a  deal- 
ing in  futures  is  or  is  not  a  bona  fide  sale  or  purchase— a 
difficulty  increased  by  the  fact  that  such  dealings  are  regu- 
larly made  through  brokers  who  make  actual  purchases  and 
sales,  but  settle  with  their  principals  upon  the  basis  of  dif- 

28  Bryan  v.  Lewis,  Ey.  &  M.  386,  32  Such  fictitious  transactions 
1826.  should    be    carefully     (listingfuished 

29  Hibblewhite  v.  McMorine,  5  from  the  setting  off  of  a  number  of 
M.  &  W.  462,  1839.  purchases    and    sales    against    cadi 

30  See  Sec.  338,  339,  infra.  other,   leaving  a   balance   for  actual 

31  Wright   V.   Cudahy,   168  111.  86,     delivery. 
48  N.  E.  39. 


186 


PUBLIC   MOEALS— GAMBLING.  ^  201 


ferences  in  valiie^^— it  is  well  established  that  if  there  is  uo 
intention  to  buy  or  sell,  but  only  to  pay  or  receive  differences 
in  value,  the  transaction  is  simply  betting  on  the  rise  or  fall 
of  market  prices,  and  hence  illegal  and  void.^^ 

i  201.  Legislation  restraining  "dealings  in  futm-es"  and 
options.— The  legislation  regarding  gambling  transactions  in 
stock  and  produce  may  be  divided  into  three  classes: 

1.  Statutes  directed  against  fictitious  transactions  where 
there  is  no  intent  of  actual  purchase  or  sale.  These  are  void 
as  wagering  contracts,  and  legislation  may  provide  for  recov- 
ery of  moneys  paid  on  account  of  them,  or  make  them  punish- 
able. Statutes  to  either  effect  exist  in  a  number  of  states.^^ 
Upon  the  theory  that  these  statutes  suppress  gambling,  their 
constitutionality  is  unquestioned.^**  It  is  true  that  some  diffi- 
culty has  been  felt  whether  they  can  be  regarded  as  bets  or 
wagers  where  only  one  of  the  parties  to  the  transaction  uses  it 
for  gambling  purposes.  X  employs  for  his  speculations  a 
broker  A,  who  deals  with  him  on  margin,  and  does  not  expect 
him  to  receive  or  deliver  any  stock.  A  makes  an  actual  trans- 
action with  broker  B,  who  acts  for  his  principal  Y.  X  takes 
the  entire  risk  of  loss  and  has  the  entire  chance  of  gain,  with- 
out any  interest  in  the  stock  bought  or  sold  as  an  actual  com- 
modity; Y  may  act  in  the  like  manner,  or  he  may  be  a  bona 
lide  purchaser  or  seller.  Assuming  that  Y  is  a  bona  fide  pur- 
chaser or  seller,  it  has  been  asked  how  there  can  be  a  wager 
or  bet;  X  deals  only  with  A,  who  does  not  bet;  A  deals  in 
goofl  faith  with  B.  and  B  acts  foj-  a  iiriiieipal  who  likewise 
dt-als  in  good  faith.  This  may  not  he  suflieient  to  constitute 
a  bet  at  eonmion  law,  hiil  Ihere  is  no  doubt  that  a  statute  may 
treat  it  as  a  betting  or  gambling  transaction  on  the  part  of  X. 
\  and  Y  -.wr  the  possible  wiiuiers  oi-  losei's,  and  X  gambles 
though  V  does  not;  tliis  is  possihh-  hccause  the  legitimat,e  and 

3aH«'«'     Hnrvcy     v.      Morrill,      I.'IO  Thjit   it  in  not  bcttinp  "on  n  jr-ime" 

Mntw.    L  .s(!C     LaiicastcT     v.     .McKinlcy     (liid. 

■♦  KitiKHbury  v.  Kirwari,  77  N.  Y.  App.),  67  N.  K.  947. 
r.l'J;     Hnin'M    Appoal,    r,r>    Vn.    LMtl;  ••'•'■' MaHHachnHctts    Rov.     Laws    cli. 

KlnRj;  V.  HaKlwin,  38  N,  J.  K(\.  219;  r9,  Sec,  4;  al»o  Ohio,  Missoiiri,  .Mis- 

l'i<-k<Tiny     V.     (VaHe,     79     III.     .'{'JS;  sisHippi,     TcniicHscc,     Tc.vaH,     South 

<  ofhraii  V.   KIliH,  125  III.  490,   1(5  N.  Carolina.    Miclii;:an.    Iowa. 
K.  fUrt;    Irwin  v.  Williar,    110  IT.  R.  .'lo  St:itc  v.  (irit/.iier,    Ktl    Mo.  fil^; 

•'"      fr-arrn  V.  Uui;    H'-'   r.  H.   L'K;  Cn-ii.lall   v.    While,    KM    Mass.  r>l,  41 

.    .InfuioHoii,    IMJ    V.    H.    IfU.  \.  E,  1.'04. 


§  201  FUTURES  AND  OPTIONS.  187 

the  gambling  elements  of  a  transaction  are  severable  by  thu 
interposition  of  a  broker,  who  buys  or  sells,  without  possible; 
gain  or  loss,  while  the  principal  wins  or  loses,  without  buying' 
or  selling.  If  one  party  is  in  good  faith,  the  contract  ought 
not  to  be  void  because  the  other  is  not,'*'  although  some  statutes 
make  it  void;^^  but  there  is  no  good  reason  why  the  law  should 
not  nullify  the  transaction  between  the  gambling  principal  and 
the  broker,  who  while  not  gambling  himself  aids  and  abets 
gambling.  The  law  of  Massachusetts,  however,  does  not  allow 
recovery  of  payments  made  to  the  broker,  where  the  oth<n- 
party  to  the  contract,  or  the  person  employed  to  buy  or  sell, 
makes  an  actual  purchase  or  sale  or  a  valid  contract  therefor.-'-* 

2.  Statutes  forbidding  contracts  for  the  sale  of  stocks  or 
bonds  not  owned  by  the  seller.  This  prohibition  was  a  fea- 
ture of  the  English  statute  of  IISV^  ''to  prevent  the  infamous 
practice  of  stock  jobbing."  It  was  adopted  for  New  York  by 
a  law  of  1812,  embodied  in  the  Revised  Statutes.^  ^  But  such 
contracts  were  again  legalised  in  New  York  in  1858,^ ^  and  do 
not  seem  to  be  forbidden  now  by  statute  anywhere. 

3.  Statutes  forbidding,  irrespective  of  gambling  intent, 
option  contracts  or  dealings  in  futures.  Illinois^-'  makes  it  a 
misdemeanor  for  anyone  to  contract  "to  have  or  give  himself 
or  another  the  option  to  sell  or  buy  at  a  future  time  any  grain 
or  other  commodity,  stock  of  any  railroad  or  other  company, 
or  gold."  By  this  prohibition  the  legislature  undoubtedly 
strikes  at  transactions  of  a  possibly  legitimate  character,  but 
the  Supreme  Court  of  Illinois  has  held  that  notwithstanding 
this  they  may  be  entirely  forbidden,  since  they  are  so  com- 
monly used  as  covers  for  gambling  pure  and  simple,^-*  and  this 
view  has  been  affirmed  by  the  Supreme  Court  of  the  United 
States.45 

In  California  the  constitution  itself  provides  that  all  con- 
tracts for  the  sale  of  shares  of  the  capital  stock  of  any  corpo- 
ration or  association,  on  margin,  or  to  be  delivered  at  a  future 

37  Bibb  V.  Allen,  149  U.  S.  481.  "  1    Revised    Statutes    710,    Sec. 

38  Connor  v.  Black,  119  Mo.  126;     6-8. 

McGrew  v.   City  Produce  Exchange,         42  La-ws   1858,  ch.   134. 

85  Tenn.  572,  4  S.  W.  38.  •'^  Criminal  Code,  Sec.  130. 

30Eev.    Laws    ch.    99,    §    4.      See         "Booth  v.  People.  186  111.  43. 
Rice  V.  Winslow,  180  Mass.  500,  62  ^r.  Booth    v.    Illinois,    184    U.    S. 

N.  E.  1057.  425. 

40  10  George  II  ch.  8. 


Igg  PUBLIC   MORALS- GAMBLING.  §  202 

day,  shall  be  void.-*^  It  was  contended  that  this  provision 
was  contrary  to  the  fourteenth  amendment  of  the  federal  con- 
stitution, but  the  Supreme  Court  of  California  disposed  of 
the  objection  by  saying:  "If  the  provision  in  question  on 
its  face  fails  to  distinguish  between  bona  fide  contracts  an'd 
grambling  contracts,  as  is  urged,  it  is  none  the  less  a  proper 
police  regulation,  for  the  question  remains  to  be  determined 
in  each  case  whether  the  transaction  is  in  contravention  of  the 
constitution.  The  courts  will  always  see  that  legitimate  busi- 
ness transactions  are  not  brought  under  the  ban.  "^' 

So  in  Arkansas  a  statutory  provision  to  the  effect  that  "the 
buying  or  selling,  or  otherwise  dealing  in  futures,  either  in 
cotton,  grain,  or  anything  whatsoever,  with  a  view  to  profit, 
is  hereby  declared  gambling,  "^'^  was  interpreted  as  applying 
only  to  fictitious  transactions.'*'^ 

A  statute  which  should  undertake  to  prohibit  without 
(jualification  all  buying  or  selling  for  future  delivery,  of  any 
commodity,  or  even  of  stocks  or  produce  only,  would  be 
unreasonable,  and  the  courts  are  evidently  not  inclined  to 
give  to  loosely  worded  legislative  provisions  such  prohibitive 
effect. 

J;  202.  Places  facilitating  speculation.— Legislation  has  been 
directe(|  against  places  exclusively  devoted  to  fictitious  trans- 
actions. Ill  \('\v  York  a  statute  making  it  a  misdemeanor  to 
keep  a  room,  etc.,  for  making  wagers  or  bets  to  depend  on 
any  lot,  chance,  casualty  or  unknown  or  contingent  event,  was 
interpreted  as  not  including  bets  ui)on  the  market,'^^  and  the 
statute    was   subse(|neiitly    ;nii(Mi(le(1    by    adding:    "or    on    tlie 

<"Art.    IV',  Her.   liO.  a  salo  of  stock   In   Ix'  doliverod  at    a 

«T  I';irker  V,  OtiH,  130  Cal.  32ii,  6-J  Intinc    'I.m.v  .'    .-iiul    would    not    hiicIi    a 

I'lU'.  r»71,  aflimuMl  liy  U.  S.  Supreme  prohibition    xunkc   the    sale   of   stock 

Coiirf  ;  OliH  V.  I'arker,  1H7  IT.  S.  fiOO.  impossiljle  ?      Tliis   would   amount    to 

The   Supreme   Court    of   the   U.   S.  an       al)rojjation      of      transi'erabli^ 

HUHtninH  thn  Htatuto  even  on  the  tlie-  Hliares,   the   rofroactivo  operation   of 

cry    that    it   HtrikeH   at   margin   f<>"-  wliieli   upon   existing  companios   and 

tr.'ietH      whicli      are      not      ^;aInhlin^  tlieir   shareliolders   woulil    surely   vio- 

f  ranwu'lionH ;    liut    the    opinion    does  late  the   l''ourteenth  Anieinlinent. 

not  refer  to  the  prohibition  of  HaleH  •»'' Mnnsf.    Dij^.    1848,    ISJO. 

for  future  delivery,  and  it  doeH  not  •»"  Fortenbury    v.    State,    47    Ark. 

appear    whether    thin    |irohibition    is  IMH. 

Hfinetioned  or  not.      Would   not   a  de-  f-"  People  v.  Todd,  .')1    llun    M<). 
livery  on   the  <lay  after  the  Hale  be 


§  202  EXCHANGES.  jgrj 

future  price  of  commodities."^'  In  Illinois  it  is  made  unlawful 
to  keep  a  bucket  shop,  office,  store  or  other  place,  wherein  is 
conducted  or  permitted  the  pretended  buying  and  selling  of 
shares  of  stock,  etc.,  either  on  margin  or  otherwise,  without 
any  intention  of  receiving  and  paying  for  the  property  so 
bought,  or  of  delivering  the  property  so  sold.^'^  In  Missouri 
a  statute  was  enacted  in  1887  prohibiting  the  keeping  of  a 
bucket  shop,  defining  it  as  "a  place— other  than  a  duly  incor- 
porated mercantile  exchange — wherein  are  posted  or  pub- 
lished from  information  received,  as  the  same  occur,  the 
fluctuating  prices  of  stock,  bonds,  etc.,  in  trades  made  or 
offered  to  be  made  in  regular  and  lawful  boards  of  exchange, 
and  wherein  the  person  carrying  on  the  bucket  shop  either  as 
principal  or  agent  pretends  to  buy  or  sell  or  goes  through  the 
form  of  buying  and  selling  any  one  of  said  commodities,  but 
wherein  neither  party  actually  buys  such  commodity  and 
neither  party  actually  sells  the  same."  By  amendment  of  1889 
the  words  "other  than  a  duly  incorporated  mercantile  ex- 
change" were  dropped.'^''  Congress  in  1901  imposed  a  tax 
upon  every  person  engaging  in  the  business  of  making  con- 
tracts regarding  the  purchase  and  sale  of  grain,  provisions, 
cotton,  stocks  and  bonds  wherein  it  is  contemplated  that  the 
contract  be  closed  according  to  public  market  quotations  of 
prices  made  on  any  board  of  trade  or  exchange  and  without 
a  bona  fide  transactioji  on  such  board  or  exchange,  and  upon 
every  person  conducting  what  is  commonly  known  as  a  bucket 
shop.     The  tax  was  repealed  in  1902. 

It  is  very  clear  that  these  provisions  were  not  intended  to 
apply  to  regular  boards  of  trade  or  exchanges.  These, 
although  they  may  also  be  used  for  fictitious  transactions, 
primarily  serve  legitimate  purposes,  and  this  purpose  excludes 
the  policy  of  outright  suppression  which  is  quite  justifiable 
where  no  bona  fide  business  is  done  at  all.  Where,  however, 
it  is  not  the  place,  but  the  class  of  transactions,  which  is 
legislated  against,  an  exception  in  favor  of  transactions  on 
regular  exchanges  is  similar  to  the  legislation  of  bets  on  the 
enclosures  of  race  tracks,  and  is  of  doubtful  con.stitutional 
validity.  A  law  of  Ohio  of  1885,  making  an  exception  of 
this  kind,  was  repealed  in  1889.^^ 

r.i  Penal  Code,  See.  343.  •'■•■•!  Connor  v.  Bhu-k.  ll!i  Mo.  lUC 

52  Act  June  6,  1887,  Soby  v.  Peo-  •'•*  Laws  of  Ohio  1885,  p.  254, 
pie,  31  111.  App.  242.  1889,  p.  12. 


190  PUBLIC  MOKALS-GAMBLIXG.  §  203 

Regular  boards  of  trade  or  stock  exchanges,  in  which  legiti- 
mate business  is  done,  have  remained  free  from  restrictive 
legislation.  The  constitution  of  California^^  directs  the  legis- 
lature to  "pass  laws  to  regulate  and  prohibit  the  buying  and 
selling  of  the  shares  of  capital  stock  of  corporations  in  any- 
stock  board,  stock  exchange  or  stock  market  under  the  con- 
trol of  any  association;"  but  no  legislation  has  been  enacted 
in  pursuance  of  the  provision.  The  Fourteenth  Amendment 
would  ])robably  not  stand  in  the  way  of  legislation  thus  con- 
stitutionally sanctioned. 

>i  203.  Foreign  legislation  regarding  exchanges. — The  diffi- 
culty of  distinguishing  between  legitimate  and  illegitimate 
speculation  has  also  been  experienced  in  other  countries. 

The  English  statute  of  1737  Avas  repealed  in  1860  and  there 
is  now  no  legislation  upon  the  subject  of  stock  speculation  in 
England. 

The  provisions  of  the  French  Penal  Code  were  quite  compre- 
hensive in  the  matter  of  gambling  transactions  in  stocks: 
it  forbade  all  machinations  to  bring  jiriccs  above  or  below 
what  they  would  be  in  case  of  free  competition  f^  all  bets 
on  the  rise  or  fall  of  public  securities,^"  and  all  agreements  for 
the  sale  and  delivery  of  public  securities  where  the  seller  could 
not  prove  that  he  had  them  ;it  his  disposal  at  the  time  of  the 
agreement,  oi-  would  have  had  them  at  the  time  set  for 
delivery.'^'^ 

An  a<'1  of  M;iri-h  2M,  188'),  however,  recognises  as  legal  all 
time  fontrai-ts  regarding  public  or  other  securities,  or  goods 
or  iiH-n-handisc,  and  provides  llial  no  one  may  escape  the 
r^inltiiig  obligations  by  setting  up  the  defense  of  wager  or 
gambling,  even  though  the  settlement  should  be  by  payment  of 
differences.  The  ;ic1  repe.-ils  jirlieles  421  and  422  of  Ihe  Penal 
Coch'  above  rcTerred  to.  Every  brnkei-  is  m.-ide  i'isi)oiisihle 
for  tin-  deliver.N'  and  j);iyMieiil  of  his  s.iles  .-iiid  piiiTliases,  ;iiid 
the  terms  of  llir  pi  i-roi-ni.iniT  uj"  time  eonlraels  Ity  bi-okers 
.'ii'"    1o  l»e  fixed  by  administ  ral  ive  ordinance. 

In  Franei-  jis  well  ;is  in  (Jerjnany  iind  other  eoni  inent.jil 
Htates,  the  establishment  of  <'X(dianges  has  long  lieeii  depenchmt 
upon  governmental  eonsent.  and  the  "j-overinmiil  ;dso  to  n 
considerable   extent   supervises    llnir    ninn.igenM'rd    and    rules. 

ft--  IV  L'fi.  "See.  4'Jl. 

6«Se<-.  41 1».  f'SHcc.  422. 


§  2Uo  EXCHANGES.  lf)l 

This  supervision  is  based  partly  on  the  ground  that  the  (juota- 
tions  fixed  by  the  exchange  are  for  legal  purposes  accepted 
as  determining  the  market  price  of  the  commodities  to  which 
they  refer.  It  is,  however,  clear  that  control  over  exchanges 
is  claimed  irrespective  of  that  fact.  In  1896  a  stringent  law 
was  enacted  in  Germany  for  the  purpose  of  regulating  deal- 
ings in  futures  of  the  character  usual  in  stock  and  produce 
exchanges,  requiring  among  other  things  that  in  order  to 
make  contracts  of  that  kind  enforceable  the  parties  thereto 
should  be  entered  in  exchange  registers;  whereupon  the  de- 
fense that  the  contract  was  a  gambling  transaction  should  be 
excluded.  A  great  opposition  arose  to  this  requirement  of 
registration,  to  which  most  bankers  and  brokers  refused  to 
submit.  A  number  of  produce  dealers  in  Berlin  undertook  to 
form  a  free  exchange  association,  foregoing  the  privilege  of 
officially  recognised  quotations  and  hoping  thereby  to  escape 
the  provisions  of  the  statute.  It  has,  however,  been  held  that 
such  an  exchange  is  as  much  subject  to  the  law  as  any  other, 
and  it  appears  from  this  that  the  method  of  business  pursued 
in  exchange  transactions  and  the  facilities  offered  for  gam- 
bling furnish  the  true  ground  of  government  control.  This 
control  is  sought  to  be  accomplished  in  Germany  in  two  ways : 
by  an  extensive  regulation  of  exchanges  regarding  establish- 
ment, membership  (exclusion  of  women,  of  bankrupts,  etc.) 
and  methods  of  fixing  quotations,  and  by  special  restraints 
on  dealing  in  futures,  which  are  altogether  prohibited  in  min- 
ing and  industrial  shares  and  grain  and  flour  and  other 
specified  securities,  and  made  dependent  upon  the  requirement 
of  registration  in  the  securities  in  which  they  are  allowed. 
Excepting  the  provision  excluding  women,  legislation  like  that 
enacted  in  Germany  does  not  seem  to  be  beyond  the  constita- 
tional  power  of  American  states. 


CHAPTER  VIII. 

PUBLIC  MORALS    (CONTINUED). 
INTOXICATING   LIQUORS. 

§  204.  Constitutional  basis  of  control.— The  evils  and  dan- 
gers attending  the  immoderate  use  oi"  intoxicating  liquors  are 
universally  recognised.  To  what  extent  the  state  should 
imdertake  to  guard  against  them  is  a  question  which  has  been 
greatly  controverted  both  from  the  point  of  view  of  right  and 
of  expediency.  In  so  far  as  the  liquor  traffic  may  be  accom- 
l)anied  by  open  disturbances  of  public  peace,  order  or  decency, 
the  police  power  in  its  narrowest  sense  is  competent  to  deal 
with  it  on  principles  before  discussed;  the  state,  however, 
attempts  to  combat  more  remote  and  insidious  consequences: 
the  wastefulness  of  excessive  consumption  of  liquor  and  the 
gradual  undermining  of  the  physical  and  moral  constitu- 
tion of  many  individvuils  through  its  habitual  abuse.  These 
are  evils  which  primarily  affect  only  the  individual  addicted 
to  the  immoderate  use  of  intoxicants,  and  against  which  imder 
the  constitutional  view  of  individual  liberty,  he  can  guard 
by  self-control.  In  that  respect  the  danger  from  liquor  is 
very  ditferent  from  unsanitary  or  unsafe  conditions  which 
Ihrt-aten  the  public  without  the  possibility  of  adequate  indi- 
vidual self-protection.  As  in  the  case  of  gambling,  the  police 
power  alVords  j)rote(ttion  from  temptation,  i.  e.,  from  the  weak- 
ness of  the  will.  If  this  were  the  sole  .iustifieation  for  the 
control  of  llie  !i(|iior  trallie,  there  would  })e  great  force  in 
the  objection  that  it  runs  eouulei-  lo  I'lindamental  principles 
of  individual  liln  rly;  strong  i-eliiuiee  is  therel'ore  ])laced  upon 
the  ulterior  dangers  to  the  community  at  large  IVoin  the  exist- 
ence of  intemperance  in  ils  midsl.  "It  is  uriicd  Hint  as  the 
liquors  are  used  as  beverages,  and  Ihe  injury  following  th(>m, 
if  taken  in  I'Xcess,  is  voluntarily  inflicted  ;ind  is  confined  to 
the  party  offending,  their  sales  should  be  without  restrictions, 
the  eontention  being  that  what  a  man  shall  drink,  e(|ually  with 
what  ]\i'  sludl  eat,  is  not  pioperly  a  matter  for  legislation. 
There  JM  in  tliis  j)osition  an  assunipti<in  of  n  f;ict  \\Iii(di  does 
not  I'xist.  tli.it  wh.'u  thr  li(|uors  ar<'  taken  in  excess  tlje  injuries 

102 


§  204  GROUNDS  OF  CONTliOL.  193 

are  confined  to  the  party  offending.  The  injury,  it  is  true, 
first  falls  upon  him  in  his  health,  which  the  habit  undermines; 
in  his  morals,  which  it  weakens;  and  in  the  self-abasement 
which  it  creates.  But  as  it  leads  to  neglect  of  business,  and 
waste  of  property,  and  general  demoralisation,  it  affects  tiiosc 
who  are  immediately  connected  with  and  dependent  upon  him. 
By  the  general  concurrence  of  opinion  of  every  civilised  and 
Christian  community,  there  are  few  sources  of  crime  and 
misery  to  society  equal  to  the  dram-shop,  where  intoxicating 
liquors,  in  small  quantities,  to  be  drunk  at  the  time,  are  sold 
indiscriminately  to  all  parties  applying.  The  statistics  of  every 
state  show  a  greater  amount  of  crime  and  misery  attributal)le 
to  the  use  of  ardent  spirits  obtained  at  these  retail  li(in()r 
saloons  than  to  any  other  source.  The  sale  of  such  liciuors 
in  this  way  has  therefore  been,  at  all  times,  by  the  courts  of 
every  state,  considered  as  the  proper  subject  of  legislation."' 

It  is  certainly  the  more  conservative  view  to  look  upon  the 
control  of  the  liquor  traffic  as  a  means  of  protecting  the  com- 
munity from  crime  and  the  financial  burdens  of  pauperism, 
but  it  is  also  clear  that  the  police  power,  resting  upon  this 
incontestable  ground,  in  reality  is  turned  into  a  power  to 
protect  the  weak  individual  from  his  own  weakness,  into  a 
power  to  prevent  the  wasteful  expenditure  of  money  and  time, 
and  finally  into  a  power  to  impose  upon  the  minority  the 
sentiments  or  prejudices  of  the  majority  of  the  community,  as 
to  what  is  morally  right  and  good. 

The  manner  in  which  the  evils  of  drink  are  dealt  with  is 
characteristic  of  the  general  methods  of  the  police  power;  it 
addresses  itself  primarily  to  the  more  or  less  public  conditions 
incident  to  the  evil  and  which  encourage  and  increase  it,  and 
seeks  to  diminish  intemperance  by  controlling  and  restraining 
these  conditions.  Hence  the  great  object  of  the  police  power 
is  the  control  of  the  traffic  in  liquor.  The  individual  act  of 
consumption— the  direct  cause  of  the  evil— is  taken  cognisance 
of  only  where  it  becomes  intoxication  or  alcoholism.^ 

1  Crowley  v.  Christensen,  137  U.  nising  the  habits  of  many  people 
S.  86    1890.  and    the   demoralisation   incident    to 

2  The  history  and  present  opera-  the  administration  of  unenforceable 
tion     of     liquor    legislation     reveals  laws. 

also  very  clearly  the  practical  limi-  There  is  hardly  any  other  branch 
tations  of  the  police  power;  the  fu-  of  law  in  which  there  has  been  so 
tility   of   extreme  measures  antago-     much  shifting  and  reversing  of  poli- 

13 


194  INTOXICATING  LIQUORS.  §  205 

^  205.  Principal  points  of  legislation  and  policy.— In  the 
matter  of  the  control  of  the  traffic  we  should  distinguish  the 
policy  of  regulation  from  the  policy  of  prohibition.  Under 
both  policies  a  different  treatment  is  accorded  to  intoxicants 
according  to  whether  they  are  used  as  beverages  or  not.  Not 
unusually  a  stricter  policy  is  pursued  with  regard  to  spirituous 
or  distilled  liquors— brandy  and  whisky— than  with  regard  to 
malt  or  vinous  or  fermented  liquors. 

The  fundamental  differences  of  the  policy  of  legulation 
relate  to  the  question  of  individual  right  or  administrative 
discretion.  The  law  may  recognise  the  right  to  sell  liquor 
without  a  license,  or— which  is  not  very  different— require  a 
license  which  is  obtainable  as  a  matter  of  right  subject  to 
legally  defined  (lualifications  or  conditions  to  be  complied  with 
by  tlu'  applicant;  or  it  may  provide  for  licenses  to  be  issued 
as  a  matter  of  judicial  discretion;  or  it  may  absolutely  limit 
the  number  of  licenses  to  be  issued ;  or  it  may  leave  the  grant- 
ing or  withholding  of  licenses  to  the  free  discretion  of  those 
who  are  vested  with  the  requisite  authority. 

Ill  all  foui-  cases  alike  the  manner  of  conducting  the  traffic 
may  be  .subjected  to  restrictive  regulations.  These  regulations 
differ  according  to : 

1.  The  kind  or  quantity  of  li(|ii(ir  sold;  much  of  Ihe  liquor 
legislation  applies  only  to  retail  dealings  (from  one  pint  in 
Maryland  to  ten  gallons  in  Missouri ;  see  definition  of  "traffick- 
ing" in  §  2  of  flic  \«nv  York  Li<|nor  Tax  Law)  ;  a  nninicii)al 
charter  power  t<»  i'cgulat<'  the  selling  of  li(|nor  has  been  inter- 
preted as  cov<'ring  tlu'  wholesale  ti-ade.  • 

2.  Tile  place  and  occasion  of  the  sale;  so  j)eddling  may  be 
prohibited;  sales  may  be  forbidden  in  groceries,  or  in  dry 
goods  or  provision  stores,  etc.;'  I'cslriclions  may  on  the  other 

(•'ten.     All  forniH  ami  inctliodH  of  pov-  jircsHurc    is    not    as    ofTicioiit    as    tlic 

••rnnu'ritiil     jMiwcr    liav(«    lircii     tri('<l,  slow   iMlncation   df   pnlilic   soiitiinoiit. 

and   havt;  as  u  rule  lichen   fmind  huc-  .•md    imlliinjj    is    so    ctliciciit    jis    tlic 

icMHful  in  tlie  invprHo  order  of  tlipir  supplantiiifj    of    tlic    ;ittra('ti<)iis    of 

inriHivoncHS.        Proliibition      is      tlu'  drink   .•ind   of   llic  saloon    hy    |iro\iil 

loa«<f   ffTn-if-nf   |ioliry;   r'-strii'tivc  rcj;-  in;^   other   sonrccs   .-iihl    forms   of    ra- 

idution   with   diHcrclion.'iry   powcrH  is  tioiial   pli'asiir<'. 

!<•««  nni''i«'nt  than  roHlriclivo  rojjiila-  •'  Di'iinchy  v.  Chicago,  120  III.  627, 

tion    without    discrntionary    jKiworH;  12  X.  K.  227;   Milh-r  v.  .Amnion,   MTi 

({fivcrnrnfiital    regulation     is    iiof     as  IT.  S.  4'_M. 

«'ITi<icii|     ;iH     sdci.'il      (iicMun  if,      soi'ial  <  N'i'w    N  nik    Ijiinor  Tax    Ij.'iw  §   22. 


5^  206  SUBJECTS  OF  LEGISLATION.  I95 

hand  be  relaxed  in  favor  of  clubs,^  or  where  liquor  is  served 
with  a  meal  in  a  hotel  or  a  restaurant.'' 

3.  The  place  of  consumption,  the  license  fee  bciu^'  generally 
lower  for  sales  of  liquor  not  to  be  drank  on  the  premises  where 
they  are  sold. 

The  regulations  relate  to : 

1.  The  place  of  sale,  the  location  being  made  dependent 
upon  the  consent  of  adjoining  owners,'^  or  being  forbidden  in 
the  neighborhood  of  institutions  serving  higher  interests,**  or 
being  altogether  forbidden  in  dwelling  houses  f  elaborate  pro- 
vision being  also  made  under  some  laws  regarding  the 
arrangement  of  the  place.^^ 

2.  The  time  of  sale,  the  restrictions  relating  chiefly  to  clos- 
ing hours,  and  to  sales  on  Sundays  and  election  days. 

3.  The  persons  to  whom  the  liquor  is  sold,  restrictions  being 
found  in  probably  all  states  with  regard  to  sales  to  minors  and 
to  habitual  drunkards,!^  and  sometimes  also  to  paupers.^ 2 

4.  Incidental  attractions,  as  music,^^  or  women  ;i^  and 

5.  Incidental  disabilities  and  burdens,  so  by  refusing  a 
cause  of  action  to  recover  the  purchase  price  of  liquor  sold.^s 
or  by  creating  special  liabilities.^*^ 

In  the  policy  of  prohibition  we  distinguish  absolute  prohibi- 
tion from  public  monopoly.  Either  policy  may  be  "state 
wide"  or  local. 

In  the  matter  of  individual  consumption  the  laws  deal  spe- 
cially with  intoxication  and  with  habitual  intemperance. 

As  other  subjects  of  the  police  power,  so  the  control  of 
intoxicating  liquors  is  complicated  by  questions  arising  under 
the  federal  constitution :  the  rights  of  federal  citizenship,  the 
right  of  property,  and  the  freedom  of  commerce. 

EEGULATION  OF  THE  LIQUOR  TEAFFIC.     §§  206-212. 

§  206.  Right  to  sell  without  license  or  issue  of  license  as  a 
matter  of  right— Exclusion  of  administrative  discretion.^'  — 

5  See  §  456  infra.  "See  §  226  infra. 

cNew  York  Act,  §  31;  Mass.  Rev.  12  Mass.  Rev.  L,  ch.  100,  §  17. 

L.  ch.  100,  §  17;  Commw.  v.  Regan,  i^  See  §  250  infra. 

182   Mass.   22,  64  N.  E.  407.  1*  See  §  703  infra. 

7  Mass.  Rev.  L.  ch.  100  §  15;  New  ^■'  New  York  Act,  §  32. 

York  Act,  §  17,  No.  8.  is  Civil   Damage   Acts,   see   §   626 

8  New  York  Act,  §  24.  infra. 

0  Mass.  Rev.  L.  ch.  100,  §§  36,  37.         "  See,  also,  §  652. 
10  See  §  52  supra. 


296  INTOXICATING   LIQUOES.  §  207 

The  essential  feature  of  this  system  of  regulation  is  that  it  ex- 
eludes  all  administrative  discretion,  and  at  the  same  time 
recognises  it  as  a  principle  that  a  person  may  engage  in  the 
traffic  in  intoxicating  liquors.  It  does  not  exclude  restrictions 
upon  the  method  of  carrying  on  the  business,  nor  even  restric- 
tions by  reason  of  personal  disqualification,  provided  that 
restrictions  are  clearly  defined  by  law  and  operate  equally 
without  individual  discrimination.  It  is  not  inconsistent  with 
this  system  to  require  a  license,  this  license  being  in  the  nature 
of  a  certificate  of  compliance  with  all  the  conditions  pre- 
scribed by  law,  and  being  obtainable  as  a  matter  of  right  upon 
proof  of  such  compliance. 

This  system  of  granting  licenses  as  a  matter  of  right  is  the 
one  embodied  in  the  Liquor  Tax  Law  of  New  York.^*  The 
act  does  not  speak  of  a  license,  but  assesses  a  tax  upon  the 
business  of  trafficking  in  liquors,  upon  payment  of  which  a 
liquor  tax  certificate  is  issued;  the  certificate,  however,  is  not 
issued  to  every  one  paying  the  tax,  but  is  given  only  to  appli- 
cants giving  bonds,  showing  certain  consents,  and  making 
the  statements  required  by  law.^^  Specified  classes  of  per- 
sons may  not  be  granted  the  certificate  ;-^  upon  violation  of 
the  law  the  certificate  may  be  forfeited  and  no  other  certificate 
may  be  issued  for  a  specified  period  ;-^  and  the  trafficking  with- 
out a  certificate  may  be  enjoined  and  is  punishable.--  In  all 
essential  respects  the  certificate  is  therefore  a  license.^^ 

By  making  the  license  fee  or  tax  sufficiently  high,  even  the 
sy.stem  of  granting  licenses  as  a  matter  of  right  may  be  used 
as  a  means  of  restricting  the  TKiuor  traffic. 

The  system  of  licensing  which  excludes  discretion  appears 
to  be  regarded  witii  growing  favor;  it  was  adopted  in  Ger- 
many l)y  lilt'  Trade  Code  of  1809,-'  and  for  France  by  a  law  of 
July  17.  1880. 

IJ  207.  Rig-ht  to  sell  subject  to  statutory  disqualifications 
and  conditions.  Tlic  recognition  of  a  gen(>ral  right  to  engage 
in  till-  lii|iinr  tfiillic  as  (list inguislicd  IVoni  a  right-  depiMident 
iiimti  llic  exercise  of  ailministrative  discretion  in  cadi  case, 
is  not  incfjiisistcnt  with  citlnr  dl"  the  following  safeguards: 

"•Art  M.'inli  'Jfl,  ISOfi,  (',<■„.  I.mum,  21  Sec.  34. 

ch.  2J».  -'zScf.  129,  34. 

i«Hcr.   17,   IH.  a-iHno  §  .17,  supra. 

2«  Section   L'3.  a*  Rcc.  33. 


§  208  LICENSING   SYSTEMS.  lf)7 

1.  The  exclusion  of  specified  classes  of  persons;  so  under 
the  law  of  New  York  persons  convicted  of  felony,  minors,  aliens 
and  non-residents,  foreign  corporations,  persons  who  under 
former  laws  had  their  licenses  revoked  and  persons  convicted 
of  a  violation  of  the  present  law  (these  are  disqualified  for  a 
period  of  five  years). -^  Such  exclusion  operates  without  indi- 
vidual discrimination. 

2.  The  requirement  of  a  bond  with  sureties  for  the  com- 
pliance with  statutory  regulations,— a  very  common  feature 
of  liquor  legislation. 

3.  The  requirement  of  the  consent  of  the  landlord  of  the 
premises  in  which  the  traffic  is  to  he  carried  on :  this  is 
a  provision  in  the  interest  of  private  rights  only,  and  does 
not  give  the  person  whose  consent  is  required  a  licensing 
power.-^  To  require  on  the  other  hand  the  consent  of  all  or  of 
the  majority  of  the  inhabitants  of  a  specified  district,  is  to 
make  the  liberty  to  engage  in  the  business  practically  de- 
pendent upon  a  discretionary  license,  the  power  to  license 
being  delegated  to  the  people  instead  of  being  vested  in 
administrative  authorities.  If  the  consent  of  a  majority  can 
overcome  the  dissent  of  a  minority,  the  consent  becomes  a 
public  function  and  trust,  and  may  therefore  not  be  made  the 
subject-matter  of  a  bargain  between  the  applicant  and  the 
required  number  of  owners.-' 

§  208.  Requirement  of  a  license  to  be  issued  as  a  matter 
of  judicial  discretion.^s— This  system,  which  is  not  inconsistent 
with  absolute  exclusion  for  stated  disqualifications,  is  the  one 
which  was  adopted  in  England  by  the  first  licensing  act,  of 
5  and  6  Edward  VI,  chapter  25,  and  is  embodied  in  the  present 
English  legislation,  Avhich  provides  that  it  shall  be  lawful  for 
the  justices  of  the  peace  assembled  at  the  general  annual 
licensing  meeting  for  the  county  to  grant  licenses  for  the  sale 
of  liquor  "to  such  persons  as  they,  the  said  justices,  shall  in 
the  execution  of  the  powers  herein  contained  and  in  the 
exercise    of   their   discretion,    deem    fit   and    proper."-^     The 

25  See.  23  of  Act.  28  See,  also,  §  651-655. 

26  See,  however,  State  v.  Sinks,  299  George  IV,  ch.  61,  See.  1, 
42  Ohio  St.  345.                                           1828. 

27  Doane   v.   Chicago   City   K.   Co., 
160  111.  22,  45  N.  E.  507. 


198  INTOXICATING    LIQUOKS.  §  200 

judicial  character  of  the  discretion  is  secured  both  by  the 
requirement  of  hearing  applications,  so  that  where  an  applica- 
tion Avas  refused  without  hearing  in  pursuance  of  a  general 
resolution  to  grant  no  more  licenses,  mandamus  would  lie  to 
hear,  although  not  to  grant,^*^  and  by  provision  for  appeal 
from  a  refusal  to  grant  to  the  Quarter  Sessions.^^  This  system 
of  discretionary  licenses  has  been  common  in  this  country 
from  the  colonial  times,  and  is  even  now  found  in  the  majority 
of  states.  The  statutes  say  that  "it  shall  be  lawful  for" 
the  licensing  authorities  to  grant,  or  that  they  "may"  grant 
licenses  often  adding  "to  suitable  persons,"  or  "if  they  think 
the  applicant  a  fit  person,"  or  "if  deemed, expedient"  or  like 
words,  or  that  they  may  refuse  the  license  if  they  deem  the 
applicant  unfit.  AVords  of  discretion  are  also  used :  that  they 
may  grant  or  reject,  or  approve  or  disapprove,  "at  their 
discretion,"  "as  they  think  proper,"  etc. 

>;  209.  Judicial  control.— It  must  be  regarded  as  firmly 
established  that  tliis  discretion  is  judicial  in  its  character, 
and  does  not  mean  arbitrary  power.'*^^  Statutes  often  provide 
for  a  hearing  in  express  terms,  and  in  a  number  of  states  for 
tlu'  hearing  of  objections  and  remonstrances  as  well  as  for  a 
hearing  on  behalf  of  the  application.  Courts  have  repeatedly 
refused  to  review  the  discretion  of  the  licensing  authority,  l)ut 
this  \v;is  nearly  always  done  on  the  theory  that  the  discretion 
IkhI  been  honestly  exercised.  Mandamus  will,  therefore,  not 
lie  In  dictate  the  exercise  of  the  discretion  one  way  or  another, 
unless  it  appears  clearly  that  there  is  no  ground  for  refusal,^'' 
or  that  the  ground  of  refusal  is  one  not  recognised  by  statute.''^ 
Tn  Virginia  it  had  been  held  that  the  discretion  of  the  licensing 
autiiority  eouhl  not  be  reviewed  tliougii  it  was  admitted  that 
it  couM  not  be  an  arbitrary  discretion  •."'•''•  ther<'upon  an  ai)j)eal 
was  given  l)y  statute  to  the  cii-cuit  court.-''*'  Such  statutory 
ajipc.'ils  ;ire  rouml  in  other  states,  jiud  the  appellate  court  then 

.10  Rog,  V.  Wnlnuil  JuHticoH  .'<  C  L.  slodd  lo  (•(iriHlnic  tlio  imiiii(ii>;il  orili- 

R.  100.  jijinco  as  cxcliidiiig  discrotion. 

•n  Hrr.  27  of  Act.  •'i*  I'olliinl 'h   Appeal,    127    Pn.    St. 

32  HrliluiKlwkcr     v.     MnrHlmll,     72  .'(07. 

J 'a.   St.   200;    Unitorl   HtntoH   ox    rfl.  ir.  Kx  parfo  YoaRor,  11  Oratt.  fi.l.^. 

Itr.op  V.  DoiijjlaHH,  IJt  I).  ('.  00.  1.1  i,piyi,t„n  v.  Maury,  76  Va.  86r) ; 

'■»••»  Znnnno  v.   MoiuhI  City,   10.1    111.  AllHti.ck  v.  I'apo,  77  Va.  3.Sfi. 
652.     Thin  cawj  may  aJHo  bo  iirnlor- 


§  210  DISCRETION  OF  LICExXSlNG.  lyy 

exercises  its  own  discretion  in  the  matter."*"  Where  there  is 
no  such  statutorj^  appeal  the  relation  of  th<'  courts  to  the 
discretion  of  the  licensing  authorities  is  based  upon  the  prin- 
ciple that  there  must  be  a  hearing,  the  refusal  must  be  for 
a  legal  reason,  and  where  these  two  points  appear  the  court 
will  not  assume  to  discuss*  the  correctness  of  the  result 
reached. 2^  In  Massachusetts  it  is  expressly  provided  that  noth- 
ing in  the  act  is  to  be  construed  as  compelling  the  granting  of 
licenses.^^ 

§  210.  Considerations  guiding  discretion.— The  points  to 
be  taken  into  consideration  in  exercising  discretion  are  mainly 
three :  the  suitability  of  the  person,  the  suitability  of  the  place, 
and  the  number  of  places  in  relation  to  the  number  of  people 
and  their  reasonable  accommodation.  With  regard  to  place 
there  are  numerous  specific  restraining  provisions  in  the  stat- 
utes, which  however  are  not  necessarily  exhaustive.  With 
regard  to  number  of  places,  it  has  been  held  in  England  that 
an  absolute  limitation  is  inconsistent  with  the  right  of  each 
individual  to  the  exercise  of  judicial  discretion  in  his  par- 
ticular case;^°  but  in  New  York  (under  the  law  before  1896), 
and  Pennsylvania,  excessive  number  is  a  good  ground  for 
refusal.-*!  The  Pennsylvania  (Brooks)  law  of  1887  makes  the 
public  need  a  controlling  factor;  the  court  is  to  refuse  the 
license  whenever,  in  its  opinion,  it  is  not  necessary  for  the 
accommodation  of  the  public  and  entertainment  of  the  traveler. 

The  suitability  of  the  person  is  an  element  of  consideration 
wherever  there  is  any  discretion,  and  in  theory  it  seems 
plausible  and  perhaps  indispensable  to  insist  upon  it.  Yet  the 
abuses  of  favoritism,  etc.,  inseparable  from  it,  deprive  even  this 
form  of  discretion  of  most  of  its  value.  The  requirement  <>f  ;i 
certificate  of  character  to  be  given  by  a  specified  number  of 
reputable  citizens  is  of  even  more  doubtful  utility,  and  was 
abandoned  in  England  in  1828  as  vexatious  and  unreliable. 
The  Supreme  Court  of  Michigan  has  gone  so  far  as  to  declar.' 
that  under  the  constitution  all  disqualifications  debarring  from 
the  right  to  engage  in  a  lawful  business  must  be  specific,  and 

•"•T  Hopson 's  Appeal,  65  Conn.  140.         •»!  People  ex  rel.  Hoy  v.  Mills,  SH 

38  Gross'  License,  161  Pa.  St.  344.     llun    144;  Re  Raudenbuseh,  120  Pa. 

39  Rev.  Laws,  eh.  100,  §  16.  St.  328. 

40  Reg.   V.   Walsall   Justices,   3    C. 
L.  R.  100. 


oQO  IXTOXICATIA'G   LIQUOKS.  §  211 

that  the  charge  of  bad  character  is  so  vague  that  an  applicant 
cannot  meet  it,  thus  holding  the  requirement  of  good  character 
in  a  general  way  to  be  unconstitutional;^-  but  it  has  since 
receded  from  that  position,-*^  and  the  contrary  view  has  met 
with  the  approval  of  the  United  States  Supreme  Court.^^ 

§211.  Absolute  limitation  as  to  numbers.^"'— The  laAv  of 
jNIassachusetts  is  conspicuous  for  a  provision  by  which  the 
number  of  licenses  to  be  granted  is  restricted  to  a  definite  pro- 
portion of  the  population.^*^  Such  an  absolute  limitation  may  be 
looked  upon  as  giving  to  the  license  holders  a  monopoly,  but 
it  is  also  true  that  the  monopoly  is  merely  the  incidental  effect 
of  defining  by  a  fixed  and  comprehensive  rule  Avhat  according 
to  the  legislative  judgment  is  a  reasonable  restriction  upon 
a  business  which,  carried  on  to  an  excessive  extent,  is  harmful 
to  the  community.  Such  a  monopoly  is  a  legitimate  form  of 
police  restraint,  if  the  principle  of  equality  in  the  selection  of 
the  licensees  is  not  violated.  It  must  be  admitted  that  it  is  not 
easily  reconcilable  with  the  constitutional  provision  that  no 
privilege  shall  be  granted  which  shall  not  on  \\\o  same  terms 
be  open  to  all  others,  and  it  was  on  this  ground  held  inadmis- 
sible in  Arkansas.-*'  While  not  absolutely  inconsistent  with 
tilt*  policy  of  granting  licenses  as  a  matter  of  right,  yet  the 
limitation  of  mimbers  is  not  easily  administered  under  such  a 
policy,  ;iiid  tliiTcfoi-c  not  in  ])ractice  I'ouiid  in  connection  Avith 
it.  High  license  fees  are  generally  relied  upon  to  keep  the 
iiiiiiiIh'I'  III"  places  within  i-easonal)le  limits. 

!$  212.  The  right  to  sell  depending  upon  uncontrolled  dis- 
cretion.•■'^ —  A  power  (if  uiMMiiit rolled  and  ai'bitrary  discretion 
ill  the  granting  or  withholding  of"  licenses  differs  IVoin  a  power 
of  proliihilioii  in  lliis,  that  Hie  roriiier  is  administrative,  the 
laltei-  legislative,  in  case  ol"  prohibition  llie  aiitliority  to 
wliich  the  matter  is  comniitted  (leteriiiines  that  no  licenses 
shall  lie  grjinfed  to  anybody;  no  pai'ticiilar  reasons  are  or 
can   '"■   "-iveii   in  such   a   case,   which    represeiils  an   exercise  of" 

*a  Rol)iHon  V.   Miner,  tiS  Midi.  .I-IH.  niilHific    (if    Hdsloii,    uih'    to    .100    in 

4»HtuTl(Kk  V.  Hinarl.  '.•(>  Mich.  l!<>Ht<iii;  Ucv.  I,:i\vn,  .h.  1 00,  Soc.  1 H. 
ma,  •_'!   li.  H,  A.  r,H().  *-  Kx    p.-nlc'     I.rvy,    .J.}    Artt.    42; 

«*  Crowley    v.   rhriHtenm-n,    l.'JT    II.  l/ei-ie  v.   limwn,   1(17   M:ish.  '^'.)0.    Soo 

H,  H(5.  §  (i72,  infra. 

«6Hee,  alHo.  S  (572.  <«  Hee,  hIho,  §  (J.W,  655. 

«•>  One  licenHe  fo  1,(100  inli.iliilaiilH 


§  213  UNCONTROLLED  DISCRETION.  201 

legislative  judgment  upon  a  general  question  of  policy.  Power 
of  uncontrolled  discretion  would  mean  that  the  licensing 
authority  might  grant  a  license  to  A,  and  withhold  it  from  B, 
without  any  reason  for  the  discrimination.  Such  a  power  is 
not,  and  on  sound  constitutional  principles  cannot  b<',  vi'stfd 
in  administrative  authorities.^^ 

But  it  is  regarded  as  in  accordance  with  the  principles  of 
popular  government,  that  the  people  themselves  maj-  judge 
in  each  case  whether  a  license  should  be  granted  or  not. 
Necessarily  the  reasons  or  motives  guiding  the  action  or  deter- 
mination of  a  considerable  number  of  people,  whether  ex- 
pressed by  ballot  or  by  petition,  consent  or  remonstrance,  are 
legally  imcontrollable,  and  such  popular  decision  therefore 
represents  a  form  of  absolutely  free  discretion.  The  law  may 
require  a  positive  expression  of  opinion  in  favor  of  each 
license,  or  it  may  be  satisfied  with  giving  a  right  to  veto  by 
remonstrance,^"  the  former  being  of  course  the  more  stringent 
provision.  The  power  of  decision  usually  rests  with  the 
inhabitants  of  a  smaller  district  than  a  county :  a  town,  or 
election  precinct,  or  the  neighborhood  of  a  church  or 
school,  or  a  district  within  a  specified  radivis  from  the 
proposed  house,  or  a  block  or  square.^^  Where  the  dis- 
trict is  very  small  unanimous  consent  may  be  required.  This 
comes  then  very  close  to  the  provision  for  the  consent  of 
adjacent  property  owners.  In  one  form  or  other  the  right 
to  a  license  is  thus  made  to  depend  upon  the  will  of  private 
citizens  by  the  statutes  of  a  considerable  number  of  states,^- 
and  undoubtedly  under  local  regulations  in  many  counties, 
towns  or  cities  in  other  states.  The  constitutionality  of  this 
method  of  licensing  has  been  sustained.^^ 

PROHIBITION.     §§  213-217.54 

§  213.  Constitutionality .  — The  name  "prohibition"  explains 
the  principle  of  this  legislative  policy.  It  aims  at  the  entire 
suppression  of  the  traffic  in  intoxicating  beverages,  either  l)e- 
cause  even  moderate  consumption  is  regarded  as  an  evil,  or 

*■'  §  651-655,  infra.  I'liu,   Illinois,  Kentucky,   Mississippi, 

•''0  Indiana  Nicholson  Act  of  1895.     Missouri,  Oregon,  Rhode  IsLind. 
•''^1  Harrison  v.  People  ex  rel.  Boet-         -'-^  Crowley  v.   Christensen,   137   U. 
tor,  195  111.  466,  63  N.  E.  191.  S.  86;  Swift  v.  People  e.\  rcl.  Ferris 

••■-  Arkansas,   Florida,    Iowa,    ludi-      Wheel  Co.,  162  111.  534,  44  N.  E.  528. 

54  See,  also,  §  538-542,  564. 


202  INTOXICATING  LIQUOES.  §  214 

because  it  is  believed  that  auy  method  of  regulation  is  inade- 
quate to  prevent  excess  and  abuse.  The  constitutionality  of 
prohibition  is  firmly  established."^  The  one  decision  in  which 
it  was  squarely  denied"*^  has  since  been  ignored  by  the  court 
which  rendered  it.  In  sanctioning  prohibition,  the  courts  do 
not  necessarily  accept  the  view  that  all  use  of  intoxicants  is 
wrongful,  but  simply  apply  the  principle  that  a  business  which 
ministers  merely  to  the  gratification  of  pleasure,  and  does 
not  serve  any  valuable  social  or  economic  end,  may  be  sup- 
pressed, if  attended  with  evil  to  the  community. 

>;  214.  State  wide  prohibition.— There  are  sixteen  states 
which  cither  at  some  time  have  had,  or  which  now  have,  pro- 
hibitory legislation  covering  the  entire  state. 

The  periods  of  prohibition  in  those  states  in  which  it  has 
disappeared  are  as  follows: 

Connecticut,  1853  to  1872.  Sustained,  State  v.  Wheeler, 
25  Conn.  290,  1856. 

Delaware,  1855-1857.  Upheld  as  constitutional  in  State  v. 
Allmond,  2  Houst.  612,  1856. 

Illinois,  1851-1853.  Upheld  as  constitutional,  Jones  v.  Peo- 
ple, 14  111.  196,  1852. 

Indiana,  1855-1858.  Dechiicd  unconstitutional  in  Beebe  v. 
State,  6  Tnd.  501,  1855. 

Iowa,  partial  from  1851-1884;  total  from  1884-1894.  Upheld 
in  Santo  v.  State,  2  Iowa,  165,  1855. 

.Massachusetts,  1838-1840,  1852-1868,  1869-1875.  uplu'ld  Com. 
V.  Knidall.  12  Cush.  414,  1853. 

.Michigan.  1855-1858.  Upheld  in  Sl;i1c  v.  IImwU'V,  3  .Mich. 
330,  1H54,  and  State  v.  (Jallagher,  4  .Mich.  244,  1856. 

Nebraska,  1855-1858. 

New  IIami)shire,  1855-1903. 

New  York,  1855.  Dcchircd  unconstitutional  on  account  of 
parlicniar  provisions,  \V,\  inli;iiii<i-  \.  I'roplc.  13  N.  ^'.  'MS,  1856. 

Rhode  Isliind.  1852-1863,  1874-1875,  1886-1889.  Uph.l.l  in 
State  V.  I';inl,  .'.   I,'.   I.  185,  1858. 

Sontli  I);ik(»ta,  l.s,s!MS96. 

Vermont.  lHr,o.l!M):{.  I'pli.-M  in  Lincoln  v.  Smith.  27  Vl.  328. 
1855. 

r.f- MukI't    v.     KariHJiH,    IS.*?    V.    H.  r,e  Bcobo  v.  State,  (i   In<l.  501. 

fi23. 


§  215  PROHIBITION.  203 

Of  these  states  two,  Rhode  Ishmd''"  and  South  Dakota,''^  hail 
the  principle  embodied  in  constitutional  provisions  which  were 
afterwards  repealed.  In  Iowa  a  constitutional  amendment 
was  adopted  by  popular  vote  in  1882,  but  the  adoi)tion  of  the 
amendment  was  declared  void  on  account  of  an  irrejifularity  iu 
the  proceedings  in  the  legislature  prior  to  its  submission  to 
the  popular  vote.^^ 

Prohibition  prevails  at  present  in  the  following  states: 

Maine,  since  1846.  The  famous  "jNIaine  Law"  was  enacted 
1851.  Sustained  in  State  v.  Gurney,  37  Me.  156,  58  Am.  Dec. 
782,  1853.  There  was  a  period  of  license  from  1856  to  1858. 
In  1884  prohibition  w^as  embodied  in  a  constitutional  amend- 
ment. 

Kansas,  since  1880,  Avhen  the  following  constitutional 
amendment  was  adopted:  "The  manufacture  and  sale  of  in- 
toxicating liquors  shall  be  forever  prohibited  in  this  state, 
except  for  medicinal,  scientific  and  mechanical  purposes."*^" 

North  Dakota,  since  the  adoption  of  the  first  constitution  of 
1889,  Avhich  contains  a  prohibitory  clause. 

§  215.  Scope  of  prohibition.— The  constitutional  provisions 
of  Kansas  and  North  Dakota  cover  all  intoxicating  beverages; 
that  of  Elaine  allows  legislative  exceptions  in  favor  of  cider, 
and  the  law  in  Maine  permits  the  sale  of  cider  by  the  manu- 
facturer. It  may  also  be  noted  that  ]\Iaine  added  wane  and 
beer  to  the  prohibited  list  only  in  1872.  Iowa  did  not  reach 
thoroughgoing  prohibition  until  1884.  At  first  only  dramshops 
and  retailing  by  the  glass  w^ere  prohibited  ;'^i  the  prohibitory 
law  of  1855  excepted  wholesale  dealing  in  domestic  wine  and 
cider;  in  1856  the  manufacture  of  cider,  wine,  ale  and  beer 
was  authorised,  and  in  1858  intoxicating  liquor  was  defined 
so  as  to  exempt  beer  and  native  wine."  In  a  number  of  laws 
an  exception  is  found  in  favor  of  native  wane  or  cider.  This 
discrimination  is  in  conflict  with  the  commerce  clause  of  the 
federal  constitution  and  wdth  the  provisions  of  the  Wilson 
Act  of  1890,  and  is  therefore  invalid.^^ 

Ne^v  Hampshire,  while  it  was  a  prohibition  state,  forbade 
only  sale  and  allowed  manufacture.  None  of  the  present  pro- 
hibition states  discriminates  between  wholesale  and  retail  sales. 

5T  1886-1896.  *'*'  Prohibitory    Ameudmeut    Cases, 

R8  1889-1896.  24  Kan.  700,  1882. 

59  Koehler   and  Lange  v.   Hill,   60         "  1850. 
Iowa,  543,  1883.  «-  See  as  to  this  §  232. 


204  IJsTOXICATING   LIQUORS.  §  216 

Kentucky  excludes  manufacturers  and  wholesalers  from  the 
prohibition  by  local  option.  Whether  in  any  state  local  option 
for  "license"  or  "no  license"  alfects  -wholesale  dealers,  must 
depend  upon  the  status  of  the  wholesale  trade  under  the  liquor 
legislation  of  the  state.  In  Illinois  the  local  power  of  prohibi- 
tion extends  to  wholesale  traffie.^^ 

None  of  the  prohibition  laws  undertakes  to  control  private 
possession  and  consumption,  and  while  "giving  away"  may  be 
prohibited  equally  with  selling  (in  order  to  prevent  evasions), 
Vermont  provides  expressly  that  the  words  "give  away"  do 
not  ai>ply  to  the  giving  away  of  liquor  by  a  person  in  his  OAvn 
private  dwelling,  unless  given  to  a  minor  other  than  a  member 
of  his  own  private  family  or  to  a  habitual  drunkard,  or  unless 
such  dwelling  becomes  a  place  of  public  resort.^ 

§  216.  Local  power  of  prohibition.— The  policy  of  local 
power  of  prohibition  indicates  the  sentiment  of  the  legislature 
that  the  suppression  of  the  liquor  traffic  is  a  legitimate  method 
of  dealing  with  it,  and  that  the  legislature  is  not  on  principle 
opposed  to  it.  The  question  is  left  to  be  settled  by  the  people 
of  a  local  district  for  that  district. 

In  some  states  we  find  sjiecial  local  acts  passed  by  the  legis- 
lature, establishing  prohibition  in  some  locality.-  Practically 
this  is  Tiot  very  different  from  a  local  power  of  prohibition, 
since  sudi  local  acts  are  not  apt  to  l)e  imposed  upon  the  locality 
against  its  will. 

Ill  ;i  number  of  states  llic  powers  of  legislation  vested  in 
local  authorities  extend  to  llu'  sui)i»ression  of  the  Ii(|iior  traffic. 
Thus  ill  Illinois  the  city  council  of  every  city  has  power  to 
lieensf,  rc^Milate  and  j^roliihit  the  selling  or  giving  away  of  any 
iiitnxiciit ing,  mall,  vinous,  mixed  or  reniiente(|  lifpiors;''  and 
ill  California  the  provision  of  the  eonsl  it  ut  ion  that  "  iiiiy  county, 
city,  tfiwn  or  township  may  make  ami  cnrorce  within  its  limits 
all  such  loc;il  police,  sanitary  and  other  regulations  as  are  not  in 
coiillicl  with  geiM'i-al  laws."'  has  been  Ih-M  to  place  (lr,imsli()])s 
;iimI  li;ir  roums  rntiri'ly  williiii  local  ciinli'dl,  even  to  the  extent 
of  proliiliit  ioii/' 

"3  Drnnohy     v.     (liioij;.!.     IHd  III,           i  Ad    .\l,S.c.    II. 

r.'Jl.  r.  Kx    i.iirt<«    ('jiiiiplu'lj,    74    Cal.    L'O. 

>  HiJitiit""   \^'>\    ^    1  H;  '     S.'f  !{  (Ti),      III   Alalcmiii  .-i   pciwcr  to  roHtrniii   li:is 

infra.  Iiccii    licid    to    he    ;i    iiowcr    In    |)r(i- 

2  Ho   in   Aiiilmtiiii.  Iiiliil.       I  nlcnihint,    iVc,    of    Tow  ii    (if 

3  City   Act   V,  Hoc.    1,   NO.    Hi.  .M:irinn  v.  (  li.ni.JIrr,  (i  Ahi.  «!)!>. 


§  217  LOCAL  OPTION.  oQo 

^  217.    Local  option.— The  most  common  form  of  local  power 

of  prohibition  is  that  of  local  oi)tion,  which  is  found  iti  about 
half  of  the  states  of  the  Union.  Legislative  provision  is  made 
for  the  expression  by  vote  of  the  wishes  of  the  people  (of  the 
county,  or  of  a  town),  whether  licenses  are  to  be  granted  or  not, 
such  vote  to  be  repeated  periodically  or  upon  the  petition  uf 
voters. 

In  a  number  of  earlier  cases  the  principle  of  local  option  was 
declared  unconstitutional  as  an  undue  delegation  of  legisla- 
tive power  by  the  legislature  to  the  people.*^  It  is  not  within 
the  scope  of  this  treatise  to  discuss  the  validity  of  processes 
of  legislation,  but  it  seems  clear  that  where  the  local  power 
does  not  merely  consist  in  the  ratification  of  some  legislative 
measure  which  is  then  withdrawn  from  local  control  and  can 
be  altered  only  by  another  exercise  of  state  legislative  power, 
but  is  continuing  so  that  the  people  of  the  district  can  both 
adopt  and  afterward  repeal,  or  adopt  at  any  time,'^— that  then 
the  delegation  is  undistinguishable  from  the  immemorial  grant 
of  local  powers  of  government.  The  validity  of  local  option 
is  now  generally  recognised ;  and  even  in  the  states  in  which 
it  was  formerly  held  unconstitutional,  the  position  of  the  courts 
has  been  reversed  or  materially  modified.*^  In  Texas  the  con- 
stitution directs  the  legislature  to  provide  for  local  option.'-* 

PUBLIC    MONOPOLY.      §§  218-219.io 

§  218.  South  Carolina  Dispensary  Law,— The  exclusive 
reservation  to  persons  duly  appointed  and  acting  under  official 
authority,  of  the  right  to  sell  liquor,  was  a  feature  of  the  Elaine 
Prohibition  law  of  1851,  and  was  applied  to  sales  for  medicinal 
and  mechanical  purposes.  It  was  followed  in  other  states  and 
sustained  judicially. ^^     The  extension  of  the  policy  to  the  sale 

0  Rice    V.     Foster,     4     Harrington  Groesch  v.  State,  42  Incl.  547 ;  State 

(Del.)     479;     Parker     v.     Common-  ex  rel.  Witter  v.  Forkner,  04   Iowa, 

wealth,    6    Pa,    St.    507 ;    Ex    parte  1  ;  Gordon  v.  State,  46  Ohio  St.  607, 

Wall,      48      Cal.      279;      Maize      v.  6   L.   R.  A.   749;   State  v,  .Judge  of 

State,  4  Ind.  342;  Geebrick  v.  State,  Circuit  Court,  50  N.  J.  L.  5S5,  1  L. 

f)    Fowa   491,    declaring   local   option  R.  A.  86;   Feek  v.   Township  Bt)ard 

law  of  1S57  unconstitutional.  of   Bloomingdale,   82   Mich.   393,    10 

7  Such     was     the     nature    of     the  L.  R.  A.  69. 
delegation  in  State  v.  Weir,  33  Iowa         »  Art.  XVI,  Sec.  20. 
134,  held  unconstitutional.  lo  See,  also,  §  666,  667. 

8  Locke 's  Appeal,  72  Pa.  St.  491 ;         "  State  y.  Brennan  'a  Liquors,  25 


206  IXTOXICATIXG   LIQUORS.  §  218 

of  liquor  for  ccnsiimption  as  a  beverage  was  first  undertaken 
in  this  country  by  a  local  statute  enacted  for  the  city  of  Athens 
in  Georgia.  Governor  Tillman  of  South  Carolina  in  his  annual 
message  to  the  legislature  in  1892  called  attention  to  this  law. 
A  bill  embodying  the  principle  was  passed  for  South  Carolina 
on  December  24tli  of  that  year,  to  go  into  effect  July  1,  1893.  It 
has  become  known  as  the  South  Carolina  Dispensary  Law,  and 
having  been  amended  in  important  particulars  from  time  to 
time,  in  part  to  meet  constitutional  objections,  is  in  force  at  the 
present  time.  In  1898  the  sj'stem  was  adopted  in  South  Dakota 
by  constitutional  amendment.  In  1899  Alabama  authorised  the 
establishment  of  local  dispensaries. 

A  brief  analysis  of  the  South  Carolina  law  will  explain  the 
system.  The  dispensary  system  applies  to  all  li(|uor  contain- 
ing alcohol  and  used  as  a  beverage.^-  All  manufacturers  and 
distillers  must  obtain  a  license,  except  that  any  one  may  make 
wine  for  his  own  use  from  grapes  or  other  fruit.' ^  Manufac 
turers  and  distillers  may  sell  to  no  one  in  the  state  except  to 
the  state  commissioner,'^  who  may  also  contract  for  supplies 
with  responsible  grape  growers  in  the  state.'-''  Tlu'  state  com- 
missioner furnishes  liquor  to  county  dispensers"'  who  are 
appointed,  salaried  and  uiidci-  oath,  and  who  are  themselves 
not  addicted  to  the  use  of  intoxicating  liquors.  They  may 
not  buy  from  any  one  but  the  state  commissioner.'"  No  dis- 
pensary can  be  established  in  any  township  without  the  ap- 
I)r(>val  of  a  majority  of  the  township  voters."*  The  state 
commissioner  furnishes  the  liquor  in  ])ackages  containing  from 
one-half  i)int  to  five  gallons,  to  which  his  certificate  is  at- 
tached.'" The  dispenser  may  sell  only  in  these  packages  and 
they  nnist  not  In-  hrnktii  ]»y  the  i)urchast'i-  on  the  pr^'mises 
wlii-n-  tlicy  are  sold.'*^*'  No  salis  ;iic  made  ('xt'('j)t  on  written 
aii'l  siLrii<-(l  rcqiii'sts,  showing  for  whose  use  the  liipior  is 
wanted,  jind  provision  is  nnide  against  selling  to  minors  and 
j)ersons  addicted  to  tin-  excessive  use  of  intoxicating  li(|nors."' 

Hxeept   as   [)rovided    in    iji.-   ;ict    the    iii;innl'aeture,   sale,   ex- 

(Jonn,   ^78;    contra,   Bochc  v.   State,          i"Sec.  3. 

H   IikI.  ."jOI,  whiih  \h,  li(i\v«!Vor,  [inili-  i"  Sec.  14. 

ably  no  lon^'T  ntithority.  i"  Sim-.  8. 

'2Hpf.   1.  10  Sec.  3,5. 

1  »«*•<■.  1.').  aoPp,..  .^, 

'♦S.«c.  1.'5.  21  Sec.  11. 

If'  See.  liS. 


§  219  PUBLIC  MONOPOLY.  207 

change,  and  transportation  of  alcoholic  liquor  for  any  purpose 
is  forbidden  in  the  state.^- 

The  act  of  1892  was  remodeled  in  1893,  the  main  principle 
of  the  statute  being  preserved.  In  April,  1894,  the  Supremo 
Court  of  the  state  (one  of  the  judges  dissenting)  declared  tin- 
law  to  be  unconstitutional  upon  the  broad  ground  that  the 
state  could  not  in  the  exercise  of  its  police  power  engage  in  a 
commercial  enterprise.^^ 

For  a  time,  therefore,  the  dispensaries  were  closed.  A  change 
in  the  Supreme  Court  was,  however,  shortly  expected,  and 
the  governor  declared  that  since  the  court  had  passed  only  on 
the  act  of  1892,  and  not  upon  the  act  of  1893,  the  latter  was  in 
effect  and  would  be  enforced.  In  place  of  the  retiring  judge 
the  legislature  elected  one  known  to  be  in  sympathy  with  the 
law.  The  act  of  1893  came  before  the  newly  constituted  court 
and  was  declared  constitutional,  against  the  dissent  of  the 
judge  who  in  the  earlier  case  had  pronounced  against  the  val- 
idity of  the  law  of  1892.  The  court  held  that  it  was  not  within 
the  power  of  the  state  to  engage  in  ordinary  commercial  en- 
terprises; but  that  liquor  was  not  on  the  same  footing  with 
other  commercial  commodities,  and  being  an  article  dangerous 
to  the  community,  the  assumption  of  the  traffic  by  the  state 
was  simply  a  form  of  controlling  the  danger,  as  legitimate,  if 
deemed  expedient  by  the  legislature,  as  regulation  or  prohibi- 
tion. With  regard,  at  least,  to  an  article  dangerous  to  the 
morals,  good  order,  health,  or  safety  of  the  people,  a  state 
monopoly  is  thus  declared  a  proper  instrument  of  the  police 
power.2-1 

A  county  monopoly  has  since  been  upheld  in  Georgia.^^ 

§219.  Gotenburg  system.— It  is  only  another  form  of 
monopoly,  if  the  state  instead  of  assuming  the  liquor  traffic 
or  delegating  it  to  its  administrative  subdivisions,  entrusts  it 
to  a  private  corporation,  to  which  it  grants  an  exclusive  fran- 
chise. Provided  that  the  terms  of  the  franchise  show  that 
the  purpose  of  the  monopoly  is  more  efficient  restriction  and 
control,  it  would  fall  within  the  principle  of  the  Slaughter 

22  See.  1, 15.  -*  State  ex  rel.   George  v.   Aiken. 

23McCnllough  V.  Brown,  41  S.  C.     42  S.  C.  222,  1894;  26  L.  E.  A.  345. 

220    23  L.  R.  A.  410.  25  Plumb  v.  Christie,  103  Ga.  686, 

42  L.  R.  A.  181. 


208  IX  TOXIC  ATI  Xti    LIQUORS.  §  220 

.House  Cases,-^  and  not  be  obnoxious  to  the  federal  constitu- 
tion. Under  the  provi^ons  of  many  state  constitutions,  for- 
bidding the  grant  of  special  or  exclusive  privileges  to  corpora- 
tions, this  form  of  monopoly  -would  be  impossible.  The  so- 
called  Gotenburg  system  existing  in  a  number  of  Swedish  cities, 
embodies  this  form  of  control,  committing  the  whole  of  the 
liquor  traffic  to  a  company  which  pays  all  the  net  profits  into 
the  city  treasury  and  is  subject  to  strict  regulations  in  the 
conduct  of  its  business. 

There  would  be  no  constitutional  objection  to  a  system  au- 
thorising the  formation  of  corporations  under  general  law, 
subject  to  similar  restrictions  as  to  profits  and  conduct  of  busi- 
ness, and  confining  the  liquor  traffic  to  such  corporations  ex- 
clusively. The  principle  of  the  organisation  of  such  corpora- 
tions would  be  the  same  as  that  adopted  by  recent  statutes  for 
pawners'  societies.^^  The  principle  of  confining  the  liquor 
business  to  licensed  corporations  would  find  support  in  judicial 
decisions  upholding  similar  legislation  with  regard  to  the  busi- 
ness of  banking-^  and  insurance. ^^ 


*P! 


LIQUOR  NOT  USED  AS  A  BEVERAGE.     §§  220-224. 

i;  220.  Subject  to  control.— Alcoholic  liquor  is  the  subject  of 
restrictive  legislation  in  consequence  of  the  harmful  effects  ol' 
its  consumi)tion  as  a  beverage.  Where  it  is  not  intended  to  be 
used  for  drink,  different  rules  become  applicable. 

Till"  principal  uses,  to  which  alcoholic  li(|uor  not  intended 
for  lit'vcrage  may  l)e  put,  are:  in  the  mechanic  arts  and  chem- 
ical industries,  in  which  pure  alcohol  is  variously  and  exten- 
sively employed;  and  for  medicinal  i)ur|)oses.  Wine  is  also 
used  for  sacramental  purposes,  and  aicoliolic  li(juors  enter  into 
tin-  preparation  of  pi-(>serves  and  condiments. 

Liquor  lej4:i.slation  is  nowhere  entirely  confined  to  beverages. 
Upon  well  recognised  pi-inciples,  1lie  danger  and  pi-oliahility 
that  tlie  unrestricle(l  freedom  of  legitimate  emi)lo>iiieiit  may 
be  abused  1<(  evade  the  laws  made  to  restrain  the  use  ol'  li(|uor 
as  a  l)ev<r:""'    iu^lidi^  rrgnljii  i(,ij  (.veil  where  there  is  l)i)iia  (ide 

21  ir.  W:ill.   :m,    1872.  rnnlm.  State  v.  Scoupal,  I!  S.   I).  .1.''), 

2T  111.  Art,  M.li.  29,  1895);  Hurd 'h  \r,  L.  |{.  A.  477. 

Rov.  Hl;it.   rlinfi.    32,    No.    17(1   Ht'(\.  '-'' ('(irimKniwcallli  v.  Vrooninn,   KM 

2"  Stale  ox   rcl.   (JoodHill    v.   Wood-  l»a.  300,  L'O  L,  R.  A.  2.'50. 
raaoHc,  1  N.  D.  U46,  11  L.  R.  A.  420; 


§  221  LIQUOR  NOT  USED  FOR  URINK.  209 

intention  of  using'  the  article  legitimately.  The  policy  ol'  the 
law  in  such  a  case  is  prevention  of  evasion  rather  than  restraint 
for  its  own  sake. 

§  221.  Liquor  unsuitable  for  drink.— Where  alcoholic  liquor 
exists  in  a  form  in  which  it  is  not  coninionly  used,  antl  is  not 
attractive  as  a  beverage,  it  should  be  held  not  to  be  within  the 
restrictive  or  prohibitory  legislation.  So  it  was  said  in  Iowa, 
"so  long  as  the  liquors  retain  their  character  as  intoxicating 
liquors  capable  of  being  used  as  a  beverage,  notwithstanding 
other  ingredients  may  have  been  mixed  therewith,  they  fall 
under  the  ban  of  the  law;  but  where  they  are  so  compounded 
with  other  substances  as  to  lose  the  distinctive  character  of 
intoxicating  liquors,  and  are  no  longer  desirable  for  use  as  a 
stimulating  beverage,  and  are  in  fact  medicine,  then  their  sale 
is  not  prohibited. "30  And  in  Massachusetts :  "In  order  to  de- 
termine whether  the  statute  applies  to  a  sale  the  true  test  is 
to  inquire  whether  the  article  sold  is,  in  reality,  an  intoxicating 
liquor ;  if  it  is,  the  sale  is  illegal  although  it  is  sold  to  be  used 
as  a  medicine,  or  it  is  attempted  to  disguise  it  under  the  name 
of  a  medicine,  or  it  is  a  mixture  of  liquor  and  other  ingredi- 
ents. But  if  the  article  sold  cannot  be  used  as  an  intoxicating 
drink  it  is  not  within  the  prohibition  of  the  statute,  although 
it  contains  as  one  of  its  ingredients  some  spirituous  liquor.  "'^^ 

The  sale  of  pure  alcohol  is  sometimes  in  express  terms  ex- 
empted from  the  provisions  of  the  liquor  laws,  where  it  is 
intended  to  be  used  for  medicinal,  mechanical  or  chemical  pur- 
poses ;32  in  some  states  the  right  to  make  such  sale  is  confined 
to  druggists -,23  but  where,  as  in  most  states,  no  express  pro- 
vision is  to  be  found  it  seems  reasonable  to  regard  pure  alcohol 
as  not  within  the  statute,  unless  knowingly  sold  as  drink. '^^ 
It  was  held  in  West  Virginia  by  a  divided  court  that  the  sale 
of  essence  of  cinnamon  for  cooking  purposes,  Avhich,  however, 
was  drunk,  made  the  seller  liable.^^  In  Virginia  by  statute 
the  sale  of  fruits  preserved  in  spirits  requires  a  license ;  whether 
a  preparation  of  that  kind  is  spirituous  liquor  or  not,  may  be  a 

30  state  V.  Laffer,  38  Iowa,  422.  34  Lemly  v.   State,  69   Miss.  628; 

31  Commonwealth  v.  Ramsdell,  130  State  v.  :Martin,  34  Ark.  340;  Winii 
Mass.  68.  V.  State,  43  Ark.  151. 

32  New    York    Liquor    Tax    Law,         35  State    v.    iMuneey,    2S    W.    Va. 
Sec.  11.  494;  see,  also,  Carl  v.  State,  87  Ala. 

33  Georgia,  1884,  No.  182,  Sec.  8.  17,  4  L.  E.  A.  380. 

14 


210  IXTOXlCATINti    LIQIOKS.  §  222 

question  of  f act  ;3*'  if  put  in  good  faith,  it  would  seem,  that 
upon  general  principles  t)f  interpretation  it  should  be  exempt 
from  the  operation  of  the  statutory  restraint. 

i:  222.  Liquor  suitable  but  not  intended  as  a  beverage.^^' — 
Under  the  system  of  restrictive  regulation  of  the  liquor  trafl&c. 
—  The  inclusion  in  the  regulative  system,  of  li(iuors  intended 
for  medicinal  purposes,  is  justified  by  the  consideration  that 
without  it  "the  elfort  to  restrain  at  all  the  use  of  intoxicants 
would  be  rendered  entirely  futile."^'''*  The  common  method 
of  regulation  is  to  give  the  exclusive  right  of  sale  for  such 
purposes  to  druggists,  physicians  or  other  licensees,  exclud- 
ing sometimes  keepers  of  hotels  and  eating  houses,  and  to 
l)rovide  that  such  liquor  must  not  be  driuik  upon  the  premises 
where  it  is  sold.  The  same  reasons  that  justify  the  restriction 
of  the  sale  of  the  beverage,  justify  precautions  of  a  similar 
nature  against  the  abuse  of  the  sale  of  the  useful  article.  The 
general  principle  has  been  sustained  in  the  states,^'-^  and  by  the 
Tnited  States  Supreme  Court.^"  Sales  by  druggists  are  com- 
monly relieved  from  some  of  tiie  restrictions  upon  the  sale  of 
intoxicants,  especially  as  to  time  of  sale  and  as  to  location  of 
phu'c,  and  license  fees  are  greatly  reduced  or  nominal;'*^  on  the 
other  hand  druggists  may  be  required  to  keep  a  record  of  their 
sales  and  may  even  be  forbidden  to  sell  without  a  physician's 
prescription.'*^' 

i5  223.  The  same;  under  the  system  of  prohibition.  — All  pro- 
hibitory laws  make  an  exce]ition  in  Favor  of  salens  for  medical 
purposes.  This  is  not  a  legislative  indulgence  but  a  constitu- 
tional necessity,  since  the  state  could  not  validly  jn'ohibit  the 
use  of  valuable  ciu'ative  agencies  on  ac(^oiuil  of  a  remote  j)os- 
sibility  of  abuse.  "The  power  of  the  legislature  to  prohibit  the 
I)rescripti'tn  jind  s;ile  of  licjuor  to  be  used  :is  niedicine  does  not 

••"1  Ryall    V.    Stnto,     78    Ala.    410,  •ii  Chicago    Rov.    ("odo,     1S<)7,    8ec. 

hold   to   bo;    Halic   v.   Slate,   ."I't   Ark.  L'511;   iMaHs.  Hcv.  Laws,  cli.   100  Soc. 

'J04,  li<'l<l  JKit   In  l)r>.  I!);     New    York    Ijiquor    Tnx     I.aw, 

•■•^  See,  niHf),  §   15L'-1.'54.  S     11.    siihd.    .'t ;     llic    cxiMiiptioii     uf 

■"•  f 'oinmimwoalfh     v.     Fowler,     UC>  dni^jfislH    fnuii    license    fees    is    not 

\\y.  100,  .'l.'i  !,.  |{.  A.  K,35).  eninnstilutional   discrimination.    De- 

•■"•  WrJKlif   V.    I'eopje,    KM    111.    l'J(i;  moville    v.    Davidson    Co.,    87    Tenn. 

SiirrlH  V.  ('(.iiimonwealfh,  h:\  Ky.  3'J7.  L'14,  10  S.  \V.  .'{ns. 

<"(iray  v.  Cunnecf ieut,    15S)   U.   S.  ■•- New     York     Li(|nor    T.-ix     Tyaw, 

74.  8  n,  31. 


§  223  LIQUOR   AS  MEDICINE.  211 

exist,  and  its  exercise  would  be  qs  purely  arbitrary  as  the  pro- 
hibition of  its  sale  for  religious  purposes.  "^•'^ 

In  the  prohibition  states  of  New  England  we  find  state  com- 
missioners who  furnish  the  liquor  to  local  official  and  salaried 
agents  who  sell  for  public  account.  There  is  in  other  words  a 
public  monopoly  of  the  same  character  as  was  later  on  adopted 
for  liquors  as  beverages  by  the  South  Carolina  dispensary 
system. 

In  Kansas,  and  in  local  option  districts  in  other  states,  the 
right  to  sell  is  reserved  to  licensed  druggists,  much  as  under 
the  system  of  restrictive  regulation. 

Where  adequate  provision  exists  for  the  supply  of  medicines, 
there  is  no  right  to  furnish  liquor  for  medicinal  purposes  in 
contravention  to  these  provisions.'*'*  Not  even  physicians  may 
sell  liquor  without  the  permit  provided  for  by  law.-*^  The 
South  Carolina  dispensary  law  makes  provision  for  the  fur- 
nishing by  county  dispensaries  to  licensed  druggists  and  manu- 
facturers of  proprietary  medicines,  and  of  intoxicating  (not 
malt)  liquors  for  the  purpose  of  compounding  medicines,  tinc- 
tures and  extracts  that  cannot  be  used  as  a  beverage.  This  ex- 
cludes altogether  wine,  whiskey  or  brandy  other  than  such  as 
can  be  obtained  from  the  county  dispenser,  and  where  there  is 
no  county  dispenser  these  liquors  would  seem  to  bo  unobtain- 
able for  medical  purposes. 

It  has  been  held  in  Maine  in  a  case  where  upon  a  physician 's 
order  a  child  was  rubbed  with  rum  which  was  privately  ob- 
tained, there  being  no  licensed  druggist  in  the  place,  that  the 
statutory  penalty  was  incurred,  although  the  court  admitted 
that  it  was  indiscreet  to  prosecute.^''  This  decision  is  unsatis- 
factory. The  right  to  an  adequate  supply  of  medicines  cannot 
be  cut  off  by  the  legislature,  and  when  legal  provisions  would 
have  such  effect  they  must  to  that  extent  be  inoperative.  The 
plea  of  necessity  should  be  accepted  as  a  sufficient  defense  to  a 

43  Sarrls  v.  Commonwealth,  83  Ky.  ever  by  construction  of  law,  and  es- 
327.  peeially   if   there   is  no   special   pro- 


44  Com.  V.  Kimball,   24  Pick.   366 

45  Carson   v.    State,    69   Ala.    235 
Commonwealth  v.  Hallett,  103  Mass 
452;  Wright  v.  People,  101  111.  126 
State    V.    Fleming,    32    Kans.    588; 
State  V.  Benadom,  79  la.  90.     How- 


vision   for   sales   for   medicinal    inir 
poses,  a  physician   may  be  held   not 
to   be  within   the   spirit   of  the   act. 
State  V.  Larrimore,  19  Mo.  391. 
4c  State  V.  Brown,  31  Me.  522. 


212  IXTOXICATIXG   LIQUORS.  §  224 

criminal  charge  under  such  cirpumstances.  Courts  have  repeat- 
edly intimated  that  statutory  prohibitions  must  not  be  pressed 
to  extreme  and  imreasonable  applications  within  the  letter  but 
not  within  the  spirit  of  the  statute.  This  view  was  taken  in 
North  Carolina,-*"  and  ^Mississippi,-**  even  without  j^roof  that 
the  necessity  could  not  have  been  provided  for  without  a  viola- 
tion of  the  letter  of  the  law. 

$  224.  Sale  of  wine  for  sacramental  purposes.^^— The  sale  of 
wine  for  sacraiueutal  purposes  is  in  some  states  expressly  pro- 
vided for,  and  treated  like  the  sale  for  medicinal  and  mechan- 
ical purposes;  the  laws  of  many  states,  however,  fail  to  provide 
expressly  for  this  use.  Where  liquor  can  be  sold  under  a  gen- 
eral license  system,  the  fact  that  the  license  may  raise  the 
price  of  the  wine,  or  that  the  wine  can  only  be  obtained  at  a 
limited  number  of  places,  or  cannot  be  obtained  at  certain 
hours,  would  of  course  not  furnish  sufficient  ground  for  holding 
that  an  obstacle  was  placed  upon  the  free  exercise  of  religion. 
Where  the  sale  of  liquor  is  entirely  prohibited,  or  allowed  only 
for  mechanical  or  medicinal  purposes,  or  upon  a  physician's 
prescription,  it  may  still  be  freely  imported  for  sacramental 
use.  The  liberty  of  religion  pciliaps  does  not  impose  i\\)on  the 
state  the  duty  of  furnishing  a  market  where  the  necessary 
accessories  to  worshiji  Juay  be  procurccl.  The  piolubition  of  the 
sale  of  an  ni'licle  suitable  only  for  ivligious  pni'itoscs  would  itf 
course  l)e  unconstilnlioiKtl. 

TIIK   EXCI::«S1VE   USE  OF   I  NTOXU'ATl  X(;    LIQUORS.     §§  •22.')-l2L'7. 

5-  225.  Intoxication.-'''"  — There  can  hai-dly  l)e  any  oeeasion  for 
dealing  witli  siiii])]!-  iiitnxical  ion  except  wlierc  il  dislni-hs  and 
aniiDys  third  parties;  so  the  Criminal  ('(ule  of  Illinois  punislies 
only  an  "intoxicated  person  found  in  ;iny  street,  liigli\v;iy,  or 
other  |)ublic  place  disturl)ing  llie  peace  of  the  public,  oi"  oi'  his 
own  or  any  other  i'amil\'  in  :in.\-  private  building  or  place. "- 
N'ojunlary  intoxication  not  thus  agiir.ivalrd  may  liowevei-  be 
made  an  olTense,^  for  il  can  hardily  he  conceded  Ihal,  as  one 
court   has   intimated,   getting  druidi    is  one  of   the   inalienable 

♦TStttlo  V.  Wniy,  72  N.  C.  2.'J3,  i  Crimiiuil  Cod.-,  S   <il. 

<*  Kinj;  v.  Stnfc.  .IH  MiflH.  7:57.  -■  .Mmsh.   Rrv.    I,!i\\h,  <-1i.   112,  §   ."?!•; 

<»S<-c',  jilHd,  8  -U'lH.  Com.  V.  Crinlin,  (is  N.  10.  207. 

I"  8ep,  niHo,  S  •t'j'l. 


§  22G  INTEMPERANCE.  213 

rights  of  man. 2     Special  provision  is  made  in  a  nunilx-r  ol" 
states  for  the  punishment  of  common  or  habitual  drunkards.' 

§  226.  Habitual  intemperance.— The  police  power  deals 
with  the  habit  of  excessive  drinking  b}'  preventive  and  re- 
strictive measures. 

The  statutory  provisions  prohibiting  under  penalty  thf  fur- 
nishing of  intoxicating  liquors  to  intemperate  persons,  and 
allowing  relatives  of  such  persons  to  give  to  the  seller  warnings 
to  that  effect,  address  themselves  primarily  to  the  seller  of 
liquor,  but  operate  in  effect  upon  the  drunkard  as  a  depriva- 
tion of  liberty.^  It  must  of  course  be  open  to  the  person 
thus  interdicted  to  show  that  he  is  not  a  drunkard,  and  it 
has  been  held  that  the  notice  given  to  the  seller  puts  him  upon 
his  inquiry  as  to  the  habits  of  the  individual  he  is  warned 
not  to  sell  to,  but  that  it  must  be  proved  in  court  what  the 
habits  of  the  individual  actually  were.^  It  would  hardly  be 
within  the  power  of  the  legislature  to  give  the  wife  an  absolute 
right  to  forbid  the  furnishing  of  liquor  to  her  husband,  and 
thus  deprive  him  of  rights  enjoyed  by  other  citizens,  unless 
his  particular  status  or  condition  made  him  a  proper  object 
of  restraint. 

Prohibitions  against  the  employment  of  persons  habitually 
using  intoxicating  liquor  to  excess,  as  engineers,  conductors, 
etc.,  in  the  service  of  railroad  companies,  are  justified  on  the 
grounds  of  public  safety.  In  the  exercise  of  its  administrative 
power  the  state  may  exclude  intemperates  from  employment 
in  the  public  service,  and  provisions  to  that  effect  are  found 
in  the  civil  service  acts.'^ 

§  227.  Compulsory  commitment  to  asylums  and  institutions 
for  the  cure  of  inebriates.— A  considerable  amount  of  legisla- 
tion has  been  enacted  in  recent  years  having  in  view  the 
treatment  and  cure  of  inebriates.  Where  the  drink  habit  has 
progressed  so  far  as  to  become  a  disease,  it  may  be  ;i  propei- 
subject  for  treatment  in  an  asylum.  Compulsory  commit- 
ment, however,  as  in  other  cases  of  mental  unsoundness,  re- 

3  St.  Joseph  V.  Harris,  59  ]\Io.  c  Tate  v.  Davidson,  143  Mass.  590, 
App.  p.  122.                                                     10  N.  E.  492;  Harrison  v.  Ely,  120 

4  Commonwealth     v.     Whitney,     5      111.  83. 

Gray,  85.  "  United  States  Civil  Service  Act, 

fi  Massachusetts  Eev.  Laws,  ch.  Sec.  8;  Mass.  Eev.  Laws,  cb.  19, 
100,  sec.  63,  sec.  16. 


214  INTOXICATING   LIQUOES.  §  227 

quires  notice  and  hearing  to  comply  with  the  constitutional 
guaranty  of  due  process.'*  The  power  of  a  court  of  chancery, 
under  statute,  to  take  charge  of  the  person  as  well  as  the 
estate  of  a  habitual  drimkard  was  recognised  early  in  New 
York,^  but  a  commitment  to  an  inebriate  asylum  without 
notice  was  held  to  be  unconstitutional.^"  In  Wisconsin,  it 
was  held  that  when  the  commitment  was  penal  (the  inebriate 
being  imprisoned  for  a  definite  time),  the  law,  in  the  absence 
of  the  usual  safeguards  to  an  accused,  was  unconstitutional.^^ 
The  statutes  of  some  states  authorise  compulsory  commit- 
ment, or,  which  amounts  to  the  same  thing,  the  acceptance  of 
a  bond  from  the  inebriate  that  he  will  take  treatment,  in  case 
of  conviction  for  drunkenness.^-  In  the  absence  of  statutory 
authorisation  such  bond  has  been  held  to  be  unenforceable.^  ^ 
The  fact  of  conviction,  it  would  seem,  can  add  nothing  to 
the  power  of  the  state  which  it  would  possess  upon  any  other 
form  of  determination :  for  treatment  can  hardly  be  inflicted 
as  punishment  when  the  condition  of  the  offender  does  not 
require  it,  the  asylum  not  being  established  as  a  place  of  im- 
prisonment for  offenders  who  are  not  inebriates,  and  when 
the  condition  is  such  as  to  call  for  treatment,  not  only  is 
a  conviction  not  necessary,  but  it  would  seem  inappropriate 
if  the  person  was  not  in  reality  responsible  for  the  act  or 
condition.  It  is  held  in  Michigan  that  the  court  cannot  be 
authorised  to  take  upon  conviction  a  recognizance  that  treat- 
ment will  be  taken,  with  the  provision  that  a  certificate  from 
the  managers  of  the  institution  thiit  the  offender  has  complied 
with  its  ruh's.  will  entitle  him  to  his  final  discharge  by  the 
court.  "This  in  efTeet  permits  unofficial  persons  to  prescribe 
rules  whieh  will  :i<'<|iiii   persons  charged   willi  crime  "'^ 

THi;   LKjI-oi;  TKAIKK'   .\.\I)  THE  FEDERAL  (CONSTITUTION. 

§§  2l'H-2.'H.1. 

;:'  228.      [ii      cotiiK'ction      witli      the      police      legislation      of 
111''      sljilcs      n-gjirding     the      liquoi-      trafTic.      the      following 

»•  Mhhh.  H<'v.   l.awH.  <li.  87,  Hcf,  ijl).  Ii07 ;     I'ciiiisvlviiniii,     IS'tf),    .lime    li(). 

"Kf  Lynch,  .''.  rai^c  120.  P.  L,  377,  8  10. 
JO  Re  .lancH,  ."50  IL.w.   I'r.   (N.  V.)  i3  Re  Hrikcr,  LIO  How.   I'r.    ISC). 

44«.  M  Sciiiitc    (if     Happy     llcnnc    Club 

«iHtat«'  V.    Hyaii,   7U   Win.  CuG.  v.   Aljiciia   Co.,   '.I'.»    .Midi.    117,   L>.3   L. 

uMit'hiKiin,    LawH    (»f    1893,    No.  K.  A,  144. 


§  229  FEDERAL  CONSTITUTION.  215 

provisions  of  the  federal  constitution  require  consid- 
eration:  1,  those  bearing  on  citizenship  and  equality  ;''^ 
2,  the  protection  of  the  right  of  property  ;i''  3,  the  clause 
securing  to  the  United  States  the  right  to  regulate  commerce 
with  foreign  nations  and  among  the  states  and  with  tin-  Indian 
tribes.^" 

It  will  be  sufficient  here  to  treat  of  the  right  of  citizenship 
and  the  freedom  of  commerce,  the  principle  of  equality  and 
the  protection  of  property  being  fully  discussed  in  subse(iuent 
chapters.^  ^ 

§  229.  Right  of  citizenship. '  9— The  exercise  of  the  power 
to  control  the  right  to  sell  liquor  by  prescribing  per.sonal  quali- 
fications or  by  prohibition  does  not  abridge  the  privileges  and 
immunities  of  citizens  of  the  United  States.  "  It  is  undoubtedly 
true  that  it  is  the  right  of  every  citizen  of  the  United  States 
to  pursue  any  lawful  trade  or  business,  under  such  restrictions 
as  are  imposed  upon  all  persons  of  the  same  age,  sex  and 
condition.  But  the  possession  and  enjoyment  of  all  rights 
are  subject  to  such  reasonable  conditions  as  may  be  deemed  by 
the  governing  authority  of  the  country  essential  to  the  safety, 
health,  peace,  good  order  and  morals  of  the  community.  .  .  . 
The  police  power  of  the  state  is  fully  competent  to  regulate 
the  business— to  mitigate  its  evils  or  to  suppress  it  entirely. 
There  is  no  inherent  right  in  a  citizen  to  thus  sell  intoxicating 
liquors  by  retail ;  it  is  not  a  privilege  of  a  citizen  of  the  state 
or  of  a  citizen  of  the  United  States.  As  it  is  a  business  at- 
tended with  danger  to  the  community,  it  may,  as  already  said, 
be  entirely  prohibited,  or  be  permitted  under  such  conditions 
as  will  limit  to  the  utmost  its  evils.  The  manner  and  extent 
of  regulation  rest  in  the  discretion  of  the  governing  authority. 
That  authority  may  vest  in  such  officers  as  it  may  deem  proper 
the  power  of  passing  upon  applications  for  permission  to 
carry  it  on,  and  to  issue  licenses  for  that  purpose.  It  is  a 
matter  of  legislative  will  only.  As  in  many  other  cases,  the 
officers  may  not  always  exercise  the  power  conferred  upon 
them  with  wisdom   or  justice  to  the   parties   affected.     But 

15  IV   2,  1  and  Fourteenth  Amend-  i^  §  539,  542,  564,  655,  infra. 

„ient.                  *  ''■•See.  also,  §   702,  703,  707,  709, 

i«  Fourteeuth  Amendment.  710. 
17  Constitution  I,  8,  2. 


216  INTOXICATING   LIQUOKS.  §  230 

that  is  a  matter  which  does  not  affect  the  authority  of  the 
state,  or  one  which  can  be  brought  under  the  cognizance  of 
the  courts  of  the  United  States.  "20 

§  230.  The  freedom  of  commerce.— In  1827  the  decision  in 
Brown  v.  Maryhind-i  established  the  principle,  that  an  im- 
porter of  goods  from  foreign  countries  had  the  right  to  sell 
them  in  their  original  packages,  free  from  any  restraint  or  . 
burden  imposed  by  state  laws,  and  that  the  power  of  the  state 
attached  only  after  the  original  packages  in  the  hands  of  the 
importer  had  been  broken  and  the  goods  had  become  mingled 
with  the  general  mass  of  property  within  the  state.  It  was 
at  the  same  time  recognised  that  the  state  could  exercise  its 
police  power  over  infectious  and  similarly  dangerous  articles, 
on  the  ground  that  they^were  not  subjects  of  commerce  and 
hence  not  protected  by  the  federal  constitution. 

J-  231.  License  cases.  — In  1S47,  a  number  of  eases  collec- 
tively known  as  the  License  Cases-2  -^ere  decided  without  an 
official  court  opinion,  each  of  the  judges  stating  his  personal 
reasons.  The  decision  upheUl  statutes  of  ^Massachusetts  re- 
(jniring  a  license  for  the  retail  sale  (in  less  1b;in  undivided 
lots  of  28  gallons)  of  wines  and  spirituous  li([uors,  notwith- 
standing the  fact  that  such  liquors  might  be  imported  from 
abroad,  since  the  state  law  acted  upon  the  article  after  it 
had  passed  the  line  of  foreign  commerce,  and  became  a  ])art 
<d"  tile  mass  of  proi)iii\'  in  tlie  slate.  "Although  a  stale  is 
bound  to  receive  and  to  permit  the  sale  l)y  the  importer  of 
any  article  of  merchandise  which  Congress  authorises  to  be 
imported,  it  is  not  bound  to  furnisli  a  iiiark(4  for  it.  nor  to 
abstain  from  the  passage  of  ;iiiy  l;iw  w  liirli  il  m.-iy  ({(^ciu  neees- 
sary  or  advisable  to  ^miiiivI  IIk-  licullli  nv  mor.-ils  o''  its  cili/iMis, 
although  such  l;i\v  iii;iy  (jiscoui'age  impnrl.il  ions,  oi-  diniiiiisb 
the  profits  of  the  importer,  oi*  lessen  llie  revi'iuie  of  Hie  general 
government."-'* 

The  def'ision  alsi>  ujiiield  ;i  statute  of  \i'\v  liaiiipshire  re- 
«|uirinu'  a  license  ("or  the  sale  by  Mh-  iinpoitei"  in  liu'  original 
package  of  spirituous  licjUoi'  iniporleil  I'l-oni  Massachusetts. 
Chief  .rnsticc  Taney  and   -lustice  Caliou.   with    whom   Justice 

loCrov!  "liriHtPHHon,   137   V.  -•-•  .T  Fr<.\v.  .^OJ. 

H.  8fi.  -•••!< 'liiof  .TiihCuc  Taney,  )>.  r>77. 

3>  12  Wb.  419. 


§232  FEDERAL  CONSTITUTION.  2\1 

Nelson  concurred,  upheld  the  act  on  the  ground  Uiat  tlu-  slali- 
had  a  power  subordinate  to  that  of  Congress  to  Icj^ishitc  in 
matters  of  commerce  for  the  protection  of  local  interests,  and 
that  this  power  might  be  exercised  in  the  absence  of  any 
federal  regulation;— Justice  McLean  on  the  ground  that  the 
principle  of  Brown  v.  Maryland  applied  only  to  imports  from 
toreign  covintries  and  not  to  imports  from  another  state. 
Justice  Daniel  questioned  altogether  the  somidness  of  thi* 
principle  laid  down  in  Brown  v.  Maryland,  and  Justice  Wood- 
bury insisted  that  regulation  of  sale  after  import  was  not 
inconsistent  with  the  freedom  of  commerce. 

In  1888  in  Kidd  v.  Pearson^^  the  Supreme  Court  held  that 
the  power  to  regulate  commerce  did  not  extend  to  manufacture, 
though  the  manufactured  article  was  intended  to  be  exported, 
and  that  it  was  therefore  within  the  power  of  a  state  to  pro- 
hibit the  manufacture  of  liquor  without  any  exception  in 
favor  of  intended  exports. 

Earlier  in  the  same  year,  1888,  the  Supreme  Court  had  held, 
in  Bowman  v.  Chicago  &  N.  W.  R.  Co.,^"'  that  a  state  could  not 
prohibit  the  transportation  of  liquor  from  one  state  into 
another,  the  question  whether  it  could  prohibit  the  sale  after 
importation  being  left  open.2<5 

§  232.  Leisy  v.  Hardin  and  the  Wilson  act.— In  1890,  in 
Leisy  v.  Hardin,^"  this  latter  point  was  determined  against 
the  power  of  the  states,  and  it  seems  that  under  this  decision 
a  license  required  of  an  importer  of  liquor  for  sales  in  original 
packages  would  have  been  unconstitutional.  In  Walling  v. 
Michigan's  a  discriminative  license  was  held  invalid,  but  the 
case  strongly  intimated  that  a  non-discriminative  license  re- 
quired of  all  liquor  sellers  alike  would  be  valid  as  to  those 
selling  imported  liquor.  So  also  it  is  very  probable  that  it 
was  competent  to  the  states  to  forbid  the  sale  of  liquor  in 
original  packages  to  intemperates.-^ 

Shortly  after  the  decision  in  Leisy  v.  Hardin,  in  the  same 

24  128  U.  S.  1.  7  L.  E.  A.  183 ;  State  v.  Croodon.  78 

25  125  U.  S.  465.  Towa  556,  7  L.  R.  A.  295. 
20  Before  the  decision  in  Leisy  v.  27135  U.  S.  TOO. 

Hardin  some  state  courts  held   that  2SII6  U.  S.  446. 

the    decision    in    the    Bowman    Case  29  Common\^ealtli  v.  Zolt,   138  Pa. 

did    not    affect    the    prohibition    of  615,  11  L.  E.  A.  602. 

sales.    State  v.  Fulker,  43  Kan.  237, 


218  IX TOXIC ATixc;  liquors.  §  233 

>ear,  Congress  passed  a  statute^^  providing  that  "all  fer- 
mented, distilled  or  other  intoxicating  liquors  or  liquids  trans- 
ported into  any  state  or  territory,  or  remaining  therein  for 
use,  consumption,  sale  or  storage  thereni,  shall,  upon  arrival 
in  such  state  or  territory,  be  subject  to  the  operation  and 
effect  of  the  laws  of  such  state  or  territory  enacted  in  the 
exercise  of  its  police  powers,  to  the  same  extent  and  in  the 
same  manner,  as  though  such  liquids  or  liquors  had  been  pro- 
duced in  such  state  or  territory,  and  shall  not  be  exempt  there- 
from by  reason  of  being  introduced  in  original  packages  or 
otherwise."  The  constitutionality  of  this  act  was  upheld  in 
Wilkinson  v.  Kalirer.-" 

In  Rhodes  v.  lowa^^  n  ^^g  jigi^i  that  the  power  of  the  states 
under  the  Wilson  Act  did  not  attach  until  the  goods  imported 
had  reached  the  consignee. 

It  had  been  held  in  Tiornan  v.  Rinker,"^-^  that  a  state  in  its 
liquor  legislation  may  not  discriminate  in  favor  of  the  product 
of  that  state  as  against  the  products  of  other  states,  and  in 
Walling  V.  Michigan, •"^•^  that  wholesale  dealers  of  other  states 
may  not   l)e   discriminated   against. 

v;  233.  The  South  Carolina  law.— The  South  Carolina  dis- 
pensiir\-  law  passed  upon  in  Scott  v.  Donald'*^*  (which  was 
enacted  subsequent  to  the  passage  of  the  Wilson  Act)  pro- 
vided that  the  state  commissioner  should  in  his  purchases  give 
preference  to  th<*  brewers  and  distillers  of  the  state, ^^  and 
that  he  should  liavc  i)0wer  to  contract  with  grape  growers  in 
the  state  for  the  sale  of  their  product  through  Ihe  dispensary, 
('barging  uol  more  than  10  per  cent,  profit  for  handling  their 
wine;''"  it  also  prohibited  all  importation  into  the  state  ex- 
cept as  provided  in  llic  act.  thus  making  it  impossible  for 
tlu^  consumer  lo  iMq»orl  i'ov  his  own  use.  These  provisions 
wfTo     declared     uneonstitntioii;d     as     discriminating     against 

•'"Known  iiH  till'  Wilboii  Act,  Au^-  void;"    special    provisions    in    favor 

U8t  8,  IHSM),  I  Siip[>.  Rov.  Stat.  775'.  of    native   wines    or    cidor    seem    not 

31  140  U.  8.  M;!.  unusual,  so  Massacliusetts  R.  L.  ch. 

32  170  U,  8.  41i:.  10(1,    Hcr.     I,    ImIiI     unconstitutional. 

33  102  TT.  8.    I'J.'l,   IMKO.    See,  also.  ''„m\v.  v.  IVtrani.li,  (i(i  N.  K.  807. 
State  V.  Stncker,  .'')8   Iowa,  496;    Mr-  ■'*  1 10  U.  8.  44(). 

C'miry  v.  State,  73  Ala.  480;   State  nr.  ifi.r,  n.  8.  58. 

V.     MarHh.     .17    Ark.    :{.%(? ;     State    v,  3nSec.  IR. 

Nash.    5»7     \.    <'.    .''.M;     Mdiuir.'    v.  -fT  Sec.  23. 
State,    42    ni,;,,    «»      r,:\(),    "perluips 


§  233  FEDERAL  CONSTITUTION.  21!) 

products  of  other  states  while  recognising  liquor  as  a  legiti- 
mate article  of  commerce. 

The  provisions  condemned  in  Scott  v.  Donald  were  there- 
fore eliminated  from  the  law.  It  was  held  in  Vance  v.  Vander- 
cook  Co.-"^*^  that  under  the  Wilson  Act  the  state  in  the  exercise 
of  the  police  power  might  reserve  to  itself  the  exclusive  riglit 
to  sell  liquor  after  its  arrival  in  the  state,  so  long  as  any 
citizen  was  allowed  to  import  for  his  own  use,  but  that  tlie 
latter  right  could  not  be  qualified  by  a  condition  that  a  sample 
should  first  be  submitted  for  approval  to  the  state  commis- 
sioner, since  the  inspection  of  the  sample  was  not  an  inspection 
of  the  imported  goods  and  the  restriction  therefore  untenable 
as  an  inspection  law.  With  this  exception,  however,  the  act 
was  upheld  as  consistent  with  the  commerce  clause  of  the 
constitution. 

38  170  U.  S.  438. 


CHAPTER    IX. 

PUBLIC  MORALS   (CONTINUED). 
VICE  AND   BRUTALITY. 

SEXUAL  VICE.     §§  234-246. 

§  234.  Purpose  and  scope  of  police  control.— The  problems 
presented  by  sexual  immorality  dilt'er  considerably  from  those 
with  VN-hieh  the  police  power  has  to  deal  in  case  of  gambling  and 
drink.  The  gambling  instinct  and  the  desire  for  drink  are 
not  recognised  as  useful  or  necessary  in  the  economy  of  civil- 
ised life,  although  a  moderate  indulgence  in  them  is  regarded 
by  the  majority  of  people  as  harmless  and  unobjectionable, 
and  as  a  source  of  rational  pleasure.  On  the  other  hand  the 
sexual  instinct  is  essential  to  the  perpetuation  of  the  human 
race,  and  the  stimulation  of  sexual  attraction  cannot  be  con- 
(U'mned ;  but  custom,  the  universal  sense  of  decency,  and  the 
subserviency  to  its  natural  purpose,  set  bounds  to  the  indul- 
gence of  sexual  passion,  Avhich  is.immornl  only  in  so  far  as 
society  derives  no  benefit  from  it. 

According  as  the  element  of  sexual  intercourse  is  directly 
or  indirectly  involved  in  immoral  practices,  we  may  distinguish 
lasciviousness  and  obscenity  from  fornication  and  prostitution. 

LASCIVIOUSNESS  AND  OBSCENITY.      §§  235-239. 

§235.  Lewd  and  lascivious  conduct. —  Words,  gestures  or 
acts  suggestive  ol"  iinpiirc  thoughts  or  jiassions.  if  indulged 
in  in  private,  are  bi-yond  the  cognizance  of  the  police  ])ower; 
if  in  public.  tlu'V  arc  aj)t  to  constitnlc  disorderly  conduct  or 
ii  nuisance.'  The  olVcnce  of  lewd  and  l.-iscivions  cai'riage  or 
Ix'havioi",  u|Hii  ;iiid  gross  lewdness,-  or  open  lewdness,-'  if  not 
ainoinding  ti»  Innncation  oi-  prostiint ion.  can  llierefcnv^  hav(^ 
fndy  a  liiinted  scope.  It  li;is  hccn  lield  llwil  ncl.s  ol'  indecency 
coiiimitted  ill  tlic  prcsi-nce  ol'  ;iiio||ier  pei-son  willioiit  his  oi* 
her   con.senl.    ;ire    open    lewdness.'    wliilr    in    llic    i)i'cseiice    of 

a  coiiKcnting  par(\'  lhe_\-   would   nndoulttedly  1 onsidered   as 

private.     Snch  ads,  if  the\   stoji  short  <d'  foiKdiing  Ihe  person, 

>  N.  Y.   fVnal  ("o«lc,  Hoo.  .TS.').  ■»  Comnionwojiltli    v.    Wnrdcll,    128 

■■J  Mnjw.rh.  212,  Hoc.  I'J.  .\ijiHH.    r,2;    Fdwicr    v.    Stntn,    .■">    Day 

3  IIIinoiH  Crim.  ('<u\v.  S««r.  r,r,.  (Cuim.)   SI. 


g  236  OBSCENE  PUBLICATIONS.  221 

and  therefore  do  not  amount  to  indecent  assault  wliidi  is 
punishable  at  common  law'''  would  not  be  punishable  without 
the  statutory  provision  against  lewdness,^  which  therd'oi-c 
serve  a  useful  purpose. 

§  236.  Obscene  performances  and  publications.— Both  ob- 
scene publications  and  obscene  performances  are  punishable  at 
common  law,  and  the  former  are  frequently  prohibited  by 
statute,  more  rarely  also  the  latter.'^  The  statutes  are  primarily 
directed  against  those  who  are  active  in  procuring  or  circu- 
lating publications,  which  include  all  sorts  of  books,  writings, 
prints  or  other  pictorial  representations,  figures  or  images, 
or  even  instruments  or  articles;  but  sometimes  the  mere  pos- 
session, even  without  intent  to  sell  or  give  away,  is  made  an 
offense.^ 

Federal  legislation  prohibits  the  mailing  or  importation  or 
sending  from  state  to  state  of  any  obscene,  lewd,  or  lascivious 
book,  writing,  print,  drawing,  or  representation  or  publica- 
tion of  an  indecent  character  or  article  of  an  immoral  nature, 
or  of  any  notice  giving  information  where  such  matter  can  be 
obtained.^  The  prohibition  extends  to  private  sealed  letters.^" 
The  terms  obscene,  lewd,  lascivious,  indecent,  and  immoral  are 
used  indiscriminately  and  with  exclusive  reference  to  sexual 
impurity.i^  The  legislation  rests  partly  upon  the  control  of 
the  post  office^  2  ^nd  partly  upon  the  power  over  commerce.^ -"^ 

§  237.  Tests  of  obscenity.— A  clear  understanding  of  what 
is  criminally  obscene,  lewd,  or  lascivious  is  important  to  mark 
the  line  between  what  is  allowable  in  the  interest  of  science, 
art  and  literature,  and  what  is  punishable.  Serious  doubts 
regarding  the  legitimacy  of  the  purpose  of  the  publication 
have  arisen  in  comparatively  few  cases,  and  especially  in  the 
cases  decided  by  the  federal  courts  regarding  obscene  matter 

5  Bishop  II,  Sec.  28.  i»  Re  Wahll,  42  Fed.  822 ;  Grimm 

c  Bishop  1, 1129,  1130.  v.    United    States,    1.56    U.    S.    (504 ; 

-'  Mass.  Eev.   Laws,   ch.   212,   Sec.  Andrews  v.  United  States,  162  U.  S. 

23;  Bishop  New  Grim.  Law  I,  See.  420. 

500,  504,  and  II,  943.  "  United  States  v.  Wifrhtman,  29 

8  Illinois  Crim.  Code,  Sec.  223.  Fed.     636;     Swoaringon     v.     United 

0  United    States   Eev.    Stat.    2491,  States,  161  U.  S.  446. 

?893;   Act  Sept.   26,   1888,  I  Suppl.  i^  Ex  parte  Jackson,  96  U.  S.  727. 

621;   Febr.   8,   1897,   II   Suppl.  547;  i-' Lottery     Case      (Champion      v. 

July  24,  1897,  II  Suppl.  708.  Ames),  188  U.  S.  321. 


222  VICE  AND  BKUTALITY.  §  237 

in  the  mails  the  iimuorality  of  the  purpose  has  generally  been 
elear.i^  The  leading  English  ease  is  Reg.  v.  Hicklin.^^  A 
body  called  the  Protestant  Electoral  Union  was  formed  "to 
maintain  the  Protestantism  of  the  Bible  and  the  liberty  of 
England,  to  expose  the  deceptive  machinations  of  the  Jesuits," 
etc.  A  member  of  this  body  in  the  furtherance  of  the  pur- 
poses of  the  union,  published  a  pamphlet  called  "The  Confes- 
sional Unmasked,  shewing  the  depravity  of  the  Romish  priest- 
hood, the  iniquity  of  the  confessional  and  the  questions 
put  to  females  in  confession. ' '  --  The  pamphlet  consisted  of 
extracts  in  translations  from  works  of  theologians  and  casuists, 
about  one-half  of  the  pamphlet  being  obscene  in  fact  as  relating 
to  impure  and  lilthy  acts,  words  and  ideas.  The  pamphlet  was 
circulated  at  street  corners  and  sold  at  the  price  of  one 
shilling.  Proceedings  were  instituted  for  the  seizure  and 
destruction  of  these  pamphlets,  and  upon  appeal  to  the  Quarter 
Sessions  the  Recorder  held  that  the  publication  was  not  within 
the  provisions  of  the  statute  against  obscene  books,  in  view 
of  the  absence  of  any  purpose  to  corrupt  the  public  morals. 
This  decision  was  reversed  by  the  Court  of  Queen's  Bench, 
the  Justices  holding  that  the  test  of  the  obscenity  must  be 
found,  not  in  llif  ulterior  object  or  motive  of  the  publication, 
but  in  its  tendency  to  deprave  and  corrupt  those  whose  minds 
are  open  to  immoral  influences  and  into  whose  hands  publica- 
tions of  that  kind  may  fall,  and  that  it  went  far  beyond 
anything  which  was  necessary  and  legitimate  for  the  purpose 
of  attai'Uiiig  the   confessional.'" 


'*  Perliaps  the  only  case  in  which  nutl     Jolin     II.     Thumas,     TiOtterie-s, 

good    faitli    was    denied    witii    some  I'rand  arid  Ohseenity  in  the  Mails,  § 

plauHihility  is  United  States  v.  Har-  241-L'46. 

raon,  45  Fed.  414.  The  indiscrinii-  "*  11  ("ox  Crim.  (Jaaes,  19,  1868. 
nate  and  nnsolicited  di.sseniination  '"'It  was  iicJd  later  on,  in  Steele 
of  Moralled  meflical  iiifoi  ination  is  v.  Hrannan,  41  1..  .1.  M.  ( '.  S."),  that 
j»ropprly  held  not  tu  Ih-  lejriliniate.  the  pamphlet  ((iiiilciniied  in  Heg. 
I'nife*!  SfafeH  v.  (IheHnnm,  H>  Fed.  v.  llickiin  conld  not  be  published  as 
45>7 ;  United  States  v.  f'larke,  .18  part  of  ;»  rejKirt  of  the  judicial  pro- 
Fed.  73U;  United  States  v.  Smith,  4.')  ceedinys  in  which  the  pamphlet  was 
Fed.  476;  Commw.  v.  Landis,  8  part  of  the  record.  Kej^ard  for  <le- 
TMiila.  4.'i.'<.  See,  also.  United  States  <eney  is  ev«'n  allowed  to  control  the 
V.  Martin,  .in  Ferl.  f»18,  and  United  fullness  of  i)lea<iiiipn.  TTnited  Slates 
Stales  V.  Lamkin,  7.3  Fed.  4.')5);  Dun-  v.  Hmiu'tl,  Ki  Hiatch.  'M\H:  "It  is 
lop  V.  United  States,   10.'')  U,  S.  480,  the  d(»ctrino  of  our  American  courts 


§  238  OBSCENE  PUBLICATIONS.  223 

In  People  v.  Muller^^  a  dealer  was  indicted  for  placing  on 
sale  photographs  of  pictures  which  had  been  exhibited  at  the 
Paris  Salon  and  in  American  cities.  The  jury  found  the  pic- 
tures obscene  and  indecent,  and  the  conviction  was  sustained 
by  the  Court  of  Appeals.  It  was  held  to  be  no  defense  that 
the  picture  was  of  distinguished  merit,  nor  that  it  was  sold 
to  a  person  whom  it  could  not  injure ;  also  that  the  testimony 
of  a  professional  artist  was  properly  excluded,  the  question 
not  being  Avhether  the  picture  was  indecent  in  the  opinion 
of  a  particular  class,  but  whether  it  was  indecent  in  fact,  and 
that  this  was  matter  of  judgment  within  the  knowledge  of 
ordinary  jurymen. 

In  the  Matter  of  the  Worthington  Company,^^  a  receiver 
applied  to  the  court  for  leave  to  sell  a  number  of  costly  books, 
containing  well-known  works  by  Rabelais,  Boccaccio  and 
others,  the  contents  of  which  were  immoral.  The  court  allowed 
the  sale  on  the  ground  that  the  books  in  question  had  a  recog- 
nised standing  in  literature,  and  that  the  particular  copies 
in  question  would  appeal  chiefly  to  book  lovers  and  that  evil 
effects  were  therefore  not  to  be  apprehended. 

These  decisions  concur  in  finding  the  test  of  obscenity  in 
the  effect  rather  than  the  purpose  of  the  publication,  but  the 
case  last  cited  looks  to  the  effect  in  particular  instances  in- 
stead of  to  the  general  effect.  On  principle,  and  apart  from 
the  facts  of  that  case,  the  general  effect  should  be  controlling, 
since  it  is  impossible  to  foresee  into  what  particular  hands 
a  publication  may  get,  and  a  most  serious  and  legitimate  treat- 
ment of  sexual  relations  may  have  for  some  persons  only  a 
morbid  interest.  The  general  effect  is,  however,  in  reality 
undistinguishable  from  the  purpose,  since  every  one  must  be 
presumed  to  contemplate  the  natural  and  probable  conse- 
quences of  his  acts. 

§238.     Legitimate  purposes:   science,  social  reform,  etc.— 

The   purpose    of   arousing    impure    emotions    is    generally    ex- 

that  a  libel  too   obscene  to   appear  c<>ncession  since  the  obscene  matter 

with  decency  on  the  record  may  be  must    appear    in    the    evidence.      In 

described    in    a    more    general    way,  England  the  concession  is  not  made, 

and    then    an    averment    of    the    too  Bradlaugh  v.  Eeg.  3  Q.  B.  0.  607. 

great  obscenity  of  its  words  will  be  i"  96  N.  Y.  408. 

accepted    instead    of    their    tenor."  is  30  N.  Y.  Suppl.  361.  iM  L.  R.  A, 

Bishop  New  Criminal  Procedure  II,  110. 
Sec.    790.      This    seems    a    needless 


224  "^ICE  AND  BRUTALITY.  §  239 

eluded  by  serious  scientific  purpose,  and  the  legitimate  pursuit 
of  science  is  therefore  safe  from  the  charge  of  criminal  ob- 
scenity or  laseiviousness. 

The  investigation  and  publication  of  truth  for  the  promo- 
tion of  human  knoAvledge  is  of  the  essence  of  science,  and 
must  be  beyond  the  interference  of  the  police  power.  Truth 
and  science  are,  however,  not  convertible  terms,  and  it  cannot 
be  admitted  that  every  true  fact  is  a  contribution  to  science. 
"Whether  the  statement  of  a  fact  is  a  contribution  to  science 
or  not  must  depend  chiefly  upon  the  form  and  circumstances 
of  the  statement,  and  commonly  accepted  canons  will  gen- 
erally furnish  the  safest  guidance.  It  is  obvious  that  if  truth 
were  a  complete  justification  the  prohibition  of  obscenity 
would  be  entirely  futile. 

The  interest  of  public  decency  demands  that  even  in  the 
legitimate  pursuit  of  truth  the  channels  selected  for  the  spread- 
ing of  truth  be  those  least  harmful  to  the  connnunity,  and  the 
traditions  of  science  have  accepted  this  condition,  which  cannot 
be  regarded  as  a  limitation  of  true  liberty.^ ^ 

§  239.  Art  and  literature.-'*— Here,  too,  the  purpose  should 
be  regarded  as  controlling,  since  as  a  rule  it  will  determine 
the  general  effect.  An  author  may  depict  immorality  for  a 
moral  purpose,  and  if  he  does  it  in  such  a  way  as  to  impress 
its  evil  character  upon  his  readers  there  can  be  no  danger  to 
I)ublic  morals  ;2'  but  if  he  makes  vice  alluring,  it  is  just  to 
hold  that  he  must  have  contemplated  the  probable  consequences 
of  his  work,  and  the  avowal  of  a  moral  purpose  need  not  l)e 
;i('ci'j)t('(l  as  conclusive. 

A  high  degree  of  artistic-  Ix'auty  is  ijicoiisisttnit  with  the 
idea  of  ob.sceriity  to  which  grossness  is  essential.  The  siig- 
gestivenoss  found  in  dassirtal  works  of  art  aiul  litcratui-e  is 
gcinTaliy  cxcuscmI  mi  this  ground  :  but  even  where  they  have 
ii()t  this  saving  cli'incMt,  it  is  rightly  lu'ld  that  their  contiinied 
I>ublicalion  is  justifi('<|  by  tticir  historical  of  cultui-ai  iiit<'rcst, 
l>rovidc<|  that  the  legitimacy  of  the  purpose  appeal's  in  the 
forms  and  chaiuiels  of  puhlieation.     Cnstoni  is  the  best  critei-iou 

"*  rommw.     V.     liMrxliH,     S     I'liila.  iiiiniHirntivc  ((mil   of  S.ixony  Hcltiiif; 

4.'>3;    United   Htntes  v.   ('hcHman,   10  uWuU>.   jiti    order    forhiddiiiff    I  lie    pcr- 

I'eil.   4117  foriiiiiiicn     of'     Tolstoi 's     Powerw     of 

2"  See,   .iImii,   tj   '2^^.  IX'irluicHH  is  instructive  on  tliis  point. 

»>  A    deeiHion    of    tlie    liijrlicnl     :i.l-  f.lnlv    17.    IlldO.) 


§  240  ILLICIT  INTERCOURSE.  225 

of  decency,  and  in  the  absence  of  positive  enactment  established 
conventions  should  be  regarded  as  i)art  of  the  law.  Upon  this 
ground  the  nude  in  art  is  free  from  ol>jeetion.  There  is,  how- 
ever, much  in  art  and  literature  that  is  merely  tolerated, 
although  in  grossness  or  suggestiveness  it  goes  beyond  the 
canons  of  firmly  established  tradition;  with  regard  to  pro- 
ductions of  that  kind  not  even  a  long-continued  policy  of  non- 
interference will  necessarily  constitute  a  legal  sanction.  These 
tests  may  be  applied  to  judge  what  is  obscene  or  indecent  under 
statutes  or  as  a  matter  of  common  law.  The  constitutional 
power  of  the  legislature  imdoubtedly  extends  to  the  prohibition 
of  publications  which  are  immoral  without  being  obscene ;  but 
it  seems  that  where  the  word  immoral  occurs  in  statutes,  it  is 
used  rather  in  the  sense  of  obscene. 

ILLICIT  SEXUAL  INTERCOURSE.     §§240-246. 

§  240.  Notorious  cohabitation.— Sexual  intercourse  outside 
of  marriage  was  a  matter  with  which  the  common  law  did  not 
concern  itself,  but  it  was  an  ecclesiastical  offense.  In  some 
states  fornication,  without  the  aggravating  element  of  adultery, 
has  been  made  criminal,  as  a  rule,  however,  only  where  the 
illicit  relation  is  open,  public  and  notorious.- ^ 

The  mischief  against  which  the  law  is  directed  is  the  scandal 
arising  from  a  disregard  of  the  established  standards  of  pro- 
priety. This  test  should  be  applied  to  determine  whether  a 
relation  is  to  be  held  open  and  public  within  the  statute. 
Living  together  in  the  same  house  may  be  a  necessary  in- 
gredient to  the  offense,  where  the  statute  speaks  of  living 
together  ;23  but  it  has  been  held  that  evidence  tending  to  show 
occasional  acts  of  intimacy  between  a  master  and  his  servant 
will  not  establish  the  offense,  since  their  living  in  the  same 
house  is  not  in  itself  scandalous.^'*  Generally  speaking,  the 
relation  must  be  known  to  others,  and  must  be  such  that  the 
fact  of  intimacy  may  be  inferred. ^^^ 

§  241.  Autonomistic  marriage.— A  peculiar  form  of  unlaw- 
ful cohabitation  exists  where  parties  live  together  in  a  relation 
which  they  conceive  to  be  as  moral  as  marriage,  but  which  is 

22  III.  Crim.  Code,  Sec.  11 ;   Mass.  =3  Quartemas  v.  State,  48  Ala.  2fiO. 

Rev.  Laws.  eh.  212,  Sec.  14,  without  24  State  v.  Marviu,  12  Iowa.  4lt!>. 

this  ingredient ;   N.  Y.  without  pro-         25  Crane  v.  People,  1 68  111.  .lOf,. 
vision. 

15 


226  VICE  AND  BRUTALITY.  §  242 

not  recognised  as  a  marriage  by  the  law,  so  where  the  forms 
prescribed  by  law  are  not  observed  in  forming  the  relation. 
By  the  common  law  as  understood  in  most  of  the  states,  the 
compliance  with  statutory  forms  is  not  essential,-^'  though  their 
non-observance  may  be  visited  by  penalties,  the  cohabitation 
not  being  made  unlawful  thereby.  But  the  statute  may  make 
even  such  cohabitation  unlawful,  punishing  the  disregard  of 
provisions  embodying  an  important  statutory  policy ;  it  M'ould 
not,  however,  be  "lewd  and  lascivious"  cohabitation.-^  In 
Kansas  parties  to  a  so-called  "autonomistic"  marriage  were 
punished  because  they  did  not  observe  the  civil  ceremonies 
prescribed  by  statute,  the  words  "living  together  as  husband 
and  wife  without  being  married"  being  interpreted  as  mean- 
ing "without  having  been  married  as  prescribed  by  law." 
The  law  dispensed  with  the  presence  of  a  minister  or  civil 
magistrate  in  the  case  of  Quaker  marriages,  and  it  must  appear 
•  luestionable  whether  a  privilege  may  be  accorded  to  one  sect 
and  denied  to  another.  However,  it  seems,  that  the  autono- 
mistic  marriage  was  regarded  by  the  parties  as  freely  dissol- 
uble, so  llinl  it  (lid  not  in  reality  constitute  a  marriage  in  ac- 
cordance with  the  institutions  of  the  state.^''' 

§  242.  Prostitution— Scope  and  ground  of  state  control.— 
While  unlawful  or  lewd  and  lascivious  cohabitation  is  gen- 
erally treated  as  a  joint  offense,  prostitution  is  a  species  of 
sexual  vice  peculiar  t<»  women.  For  the  purposes  of  the  police 
power  prostitution  may  be  defined  as  the  promiscuous  admis- 
sion of  men  to  intercourse  for  gain  and  as  a  means  of  livelihood. 

rnislitulion  is  a  subject  h^gitimately  falling  undcM*  the  police 
[lower,  on  ;i  variety  of  grounds:  if  it  is  not  chiM-ked  it  is  apt 
to  become  ;i  public  nuisance  in  its  outward  manifestations; 
its  existence  is  antagonistic  to  iii;itriage,  and  tends  to  de- 
moralise   Ibe    cdiiiiiiniiily ;    |ii-ost  itutes    iire    a|»l     to    bcvome    a 

liurdcii     to     Ibe     public     wlieu     IhcV    ai"e     MO     loMLI'el'    ;\\)\i'     to     ply 

their  trade;  Ibe  haunts  oi'  vice  ;ire  ;ilso  ;ipl  lo  lie  tlie  haunts 
of  eriirie;  and  the  venereal  diseases  which  ;ii'e  spi-e.id  chiefly 
by  ()rostitutes  i'inl;inLrer  tlie  hcidth  of  inii(»ccii1  women  and 
cliildreri. 

The   (iiit\\,ir-il    iii;inir"'stations  of  Ibe  s(»cial   evil,   sti'cel    wallc- 

■-'■'•  Hi«li(i|f,    Mjirriiiyc   iiinl    Divnrro,  -"  CommoiiwcMlfti    v.    MiiiiHun,    l'J7 

§  449 ;  .M.!iHf«T  V    Mdon-.  ItO  U.  H.  TH.      MasH.   'I.ltt. 

■-•'State  V.  VViiikcr,  'M',  K.m.  L".t7. 


§  243  PROSTITUTION.  227 

ing,  solicitation  on  the  streets  or  from  windows,  etc.,  are 
nuisances  at  common  law  and  generally  fall  within  the  prov- 
ince of  the  municipal  ordinance  power. 

§  243,  Systems  of  legislation.— Prostitution  is  a  social  evil 
from  which  no  civilised  country  is  free,  and  its  practice  goes 
back  to  very  early  periods  of  history.  In  the  mediaeval  city 
the  brothel  was  a  recognised  municipal  institution,  and  its 
freedom  was  accorded  by  the  authorities  to  visiting  princes 
and  other  honored  guests ;  no  stigma  appears  to  have  attached 
to  intercourse  with  prostitutes.  From  the  end  of  the  15th 
century  these  licensed  and  semi-official  houses  gradually  dis- 
appeared, largely  as  a  consequence  of  the  ravages  of  venereal 
diseases  which  spread  through  Europe  about  that  time  in 
their  most  virulent   form. 

In  England  brothels  were  licensed  until  the  time  of  Henry 
VIII,  so  it  was  enacted  by  14  Richard  II  that  no  such  houses 
should  be  kept  in  Southwark,  but  in  the  common  places  there- 
for appointed.  Prostitutes  were  freely  dealt  with  by  executive 
authority.2^ 

At  present  the  status  of  prostitution  is  in  most  countries 
abnormal  owing  to  the  fact  that  it  is  admitted  to  be  in- 
eradicable, while  yet  the  law  does  not  dare  to  sanction  it. 
From  this  results  an  administrative  practice  which  is  directly 
contrary  to  the  law. 

In  Germany  the  penal  code  forbids  the  keeping  of  disorderly 
houses,  yet  in  many  cities  they  are  tolerated  and  supervised 
by  the  police. 

In  France  there  is  no  legislation  touching  prostitution,  ex- 
cept that  a  statute  of  1791  authorises  municipal  police  officers 
to  enter  at  any  time  places  notoriously  given  up  to  debauchery. 
Otherwise  the  whole  matter  is  left  to  the  mayor,  who  acts 
under  his  power  to  take  all  measures  that  may  be  necessary 
for  public  order  and  morality.  In  Paris  (and  the  Paris  regu- 
lations have  largely  been  adopted  by  other  cities)  prostitutes 
must  cause  themselves  to  be  registered  at  the  police  office. 
This  registration  may  take  place  on  their  own  motion  or  by 
official  order.  It  is  cancelled  only  if  the  police  is  satisfied 
that  the  course  of  life  of  the  woman  will  be  changed.  Regis- 
tered prostitutes  are  subject  to  police  regulations,  the  principal 


28  See  instances  given  by  Coke  in  III  Inst.  205. 


228  VICE   AND  BEUTALITY.  §  244 

liability  being  that  to  periodical  physical  examination.  There 
are,  however,  many  other  rules  as  to  conduct  on  the  streets, 
etc.,  violations  of  which  are  punishable  by  imprisonment. 
Houses  of  ill-fame  exist  under  permits,  and  are  subject  to  con- 
trol as  to  inmates  and  as  to  the  way  in  which  they  are  con- 
ducted. They  may  be  closed  temporarily  or  permanently. 
The  mayor  may  forbid  the  letting  of  lodgings  to  prostitutes 
and  bad  characters,  by  virtue  of  the  general  police  powers 
given  by  the  municipal  law  of  1884.  It  has  been  contended 
that  registration  without  the  consent  of  the  woman  by  mere 
administrative  order  is  not  due  process  of  law  ;2^  but  the  exist- 
ing  practice  is  firmly  established. 

In  England  legislation  exists  for  a  number  of  places  (ports 
and  garrison  cities)  permitting  prostitutes  to  be  placed  under 
police  control  by  order  of  a  justice  of  the  peace,  and  to  bo 
subjected  to  periodical  physical  examinations.  The  legislation 
is  sanitary  in  its  character,  the  statutes  being  known  as  con- 
tagious diseases  acts.  Outside  of  these  places  prostitution 
exists  merely  by  sufferance. 

In  America  the  policy  of  regulation,  implying  a  legalisation 
of  prostitution  within  defined  limits,  is  almost  everywhere  re- 
pudiated, and  the  police  power  operates  entirely  by  measures 
of  repression  and  restraint.  As  an  exception  it  may  be  noted 
that  Idaho  gives  power  to  municipalities  to  regulate  as  well 
as  to  supi)ress  houses  of  ill-fame. •'''' 

The  measures  of  restraint  are  directed  eitker  against  pros- 
titutes or  against  plact^s  of  prostitution. 

!?  244.  Measures  against  prostitutes.— A  common  prostitute 
as  a  iMilc  answers  the  description  of  a  vagrant,  for  she  is  with- 
out legitimate  means  of  support  and  is  apt  to  manifest  her 
iHcgitimatc  livelihood  in  an  ollVusive  manner.'"  She  may  thus 
be  dealt  with  under  the  laws  against  vagrancy,  vagabondage 

20  Soe  .Ttnl(jniont  of  MaRiHtruto  of  Rpcction,  siipprcssion    iKinjr   (lie  only 

RhfiniH,     n'j»rint('(l     in     Aimdh    State  mctlKifl     indicatcl    \,y    tlio    city    net 

lU'tMilntioii  (if  Vice,  p.  29:2.  for   <l(<aiiii>,'    witli    lliis    m:if1(>r.     ("ity 

••>■' LawHlH'MJ.p.  L'O.*).  Art    V,    I,    X...    .If,;    Act    iMarcl.    '27, 

In    Illinois  ji  statute  was  spocijiily  1S74. 

onacfed  to  make  it  unlawful  fur  mn-  •'"  Comnuinwoaltli    v.    Dolierty,    1.37 

nicipal   autlioriticH   to   frrnut   liccnscH  Mass.  LM.*};  Cominonwealth  v.  Brown, 

lor  tlic  keeping;  cif  Iiouhch  of  prowti-  111    Mass.   78;    Now   York   Tcncnioiit, 

tution  or  to  provide  for  medical  in-  llouse  Act,  l!t()l,  §   in. 


§  244  PROSTITUTION.  229 

and  criminal  idleness,  which  are  to  be  found  in  all  tlie  states. 
Prostitution  may  also  be  made  a  distinct  offense,  and  living  in 
a  house  of  ill-fame  may  be  punished  as  prostitution.''-  The 
prostitute  being  subject  to  the  penalties  of  crime  is  entitled 
to  the  safeguards  of  criminal  procedure.  She  may  be  arrested 
and  punished  by  fine  or  imprisonment,  and  there  is  authority 
for  holding  that  upon  conviction  she  may  be  required  to  give 
surety  or  recognizance  for  good  "behavior.^*-^  But  it  would  not 
be  possible  to  exercise  this  power  in  such  a  way  as  to  allow 
her  to  ply  her  trade  upon  prescribed  conditions  of  submission 
to  control,  for  since  the  main  part  of  the  understanding, 
namely,  that  she  should  continue  her  offense,  would  be  illegal, 
all  conditions  annexed  to  it  would  be  void.  The  punishment 
inflicted  upon  her  must  be  in  conformity  with  the  law  of  the 
land,  which  does  not  know  licensed  illegality  conditioned  upon 
the  acceptance  of  a  diminished  status  of  personal  liberty.  In 
Maine  it  was  formerly  held  that  a  prostitute  might  be  confined 
in  a  workhouse  by  administrative  process,  not  by  way  of  pun- 
ishment, but  as  a  measure  for  her  own  benefit  and  for  the 
protection  of  the  community.^'*  This  view,  which  would  sweep 
away  all  the  safeguards  of  due  process  of  law,  was  later  on 
declared  to  be  inconsistent  with  the  Fourteenth  Amendment, 
and  the  decision  was  overruled. ■^■'' 

Measures  for  the  repression  of  prostitution  short  of  punish- 
ing the  act  or  occupation  itself  may  be  directed  against  all 
women  or  only  against  prostitutes. 

Thus  women  may  be  forbidden  to  serve  as  waitresses  in 
saloons  or  dance  halls,  and  a  provision  has  been  sustained  pro- 
hibiting them  from  frequenting  saloons  after  midnight.^^  The 
anti-wineroom  ordinances  forbidding  the  serving  of  liquor 
in  private  apartments  of  saloons  or  restaurants  to  less  than 
four  persons,  unless  they  are*  of  the  same  sex,  or  forbidding 
the  maintenance  of  such  apartments,  belong  to  this  class.-*'^ 

Measures  directed  only  against  prostitutes  may  encounter 
the  difficulty  of  proving  the  fact  that  a  person  is  a  prostitute ; 
if,  however,  that  is  proved  or  not  denied,  the  further  difficulfy 

■ia  Webber    v.    Harding,    155    Ind.  35  Portland  v.  Bangor,  65  Me.  120. 

408,  58  N.  E.  533.  -o  Ex  parte  Smith,  38  Cal.  702. 

33  Bishop  T,  §  945.  3-  State   v.   Barge,   82   Minn.   2.56, 

3*  Adeline  G.  Nott's  Case,  11  Me.  53  L.  R.  A.  428;   Chicago  ordinance 

208,  1834.  Dec.  9,  1901. 


230  VICE  AND  BRUTALITY.  §  245 

arises  of  recognising  and  thereby  in  a  manner  legalising  the 
status.  An  ordinance  forbidding  prostitutes  from  being  on 
the  street  between  7  P.  M.  and  4  A.  M.  Avould  seem  free  from 
the  latter  difficulty  ;38  an  ordinance  requiring  them  to  live  in 
certain  districts  would  present  it  very  strongly.^^  The  same 
objection  would  apply  still  more  to  physical  examination. 

Tt  has  been  suggested  that  prostitutes  might  be  subjected 
to  a  stringent  medical  control  under  appropriate  grants  of 
power  to  health  authorities.  The  theory  would  be  that  a 
general  power  to  quarantine,  etc.,  for  the  prevention  of  con- 
tagious disease  might  be  used  for  this  purpose.  But  our  courts 
have  uniformly  held  that  an  interference  with  the  liberty  of 
the  person  and  body  under  the  sanitary  power  is  justified  only 
in  cases  of  imminent  danger,  as  e.  g.  in  epidemic  diseases,  and 
the  danger  of  contagion  from  prostitutes  is  certainly  not  of 
that  character.  The  prevention  of  the  spread  of  venereal 
disease  would  fall  within  the  province  of  the  police  power,  but 
it  Avould  require  such  specific  regulations  as  would  practically 
amount  to  a  legal  recognition  of  prostitution— the  very  thing 
which  our  legislative  policy  Avill  not  concede."*" 

As  a  matter  of  fact  the  police  exercises  a  considerable  con- 
trol over  prostitutes.  A  woman,  who  is  without  legitimate 
means  of  support,  still  more  a  woman  who  walks  the  streets 
and  solicits,  is  liable  to  be  arrested  at  any  time  upon  the 
charge  of  vagrancy.  This  power  of  arrest  is  a  weapon  which 
may  be  used  to  enforce  the  observance  of  such  rules  as  the 
police  deems  essential  to  public  mornls  or  decency.  It  is  clear 
tliat  this  result  is  accomplished  by  suspending  the  enforcement 
of  the  law.  —  an  extra-legal  condition,  wliich  can  be  ni>plied 
oidy  within  narrow  limits  and  cannot  take  the  place  of  avowed 

regulation. 

« 

si  245.  Houses  of  prostitution.— Houses  of  prostitution  are 
nnisaiici's  mI   coiriiiion   l;i\\,"    no  innlter  liow  quietly  tliey  are 

■"•1)111111    \.    »  (irn.    for   iiHo   of   Cat-  ConiinisHioncr    Taft,    in    ;i    lolcj^rnm 

th'tfHlnirjj,  20  Ky.   L.    FJrj..   1649,  43  to   tho   Secretary   of   Wiir,    .i.lmill.Ml 

L.  K.  A,  701,  49  H.  W.  813.  tliat  Hince  Novombor,  1900,  to  dieck 

■■"'!. 'Hofe  V.   N'ew  CIrleaiiH,  .ll    La.  tlie     Hpread      of     venereal      diseaHC, 

Ann.   9.'{.  known   proslilnles  were  snlijected  to 

«"  Under    military    anlliority    Hiidi  ((rtidcd    examination. 
n    Hyntem    was    afjopted    in     Manila;  • '  .'}  I nst.  L'OG. 


§  245  HOUSES  OF  PROSTITUTION.  231 

kept;^-  ill  this  respect  they  are  like  {j:aiiiing  houses  and  dilVcr 
from  places  whei-e  li(iuor  is  sold  which  become  disorderly  oidy 
by  the  manner  in  which  they  are  kept.^-'  The  nuisance  charac- 
ter arises  not  only  from  the  scandal  which  attaches  to  the 
house,  but  also  from  the  temptation  which  it  offers  to  indulge 
in  practices  which  corrupt  morals.^ ' 

The  statute  may  require  that  in  order  to  constitute  a  house 
of  ill-fame  it  must  be  shown  to  be  of  evil  repute  as  well  as 
to  be  used  for  immoral  practices  in  fact,''^  but  reputation  alone 
can  neither  be  made  the  gist  of  the  offense,  nor  conclusive  evi- 
dence of  the  offense ;  it  may  even  be  questioned  whether  the 
fact  may  be  found  from  the  evidence  of  reputntion  alone, 
although  dicta  to  that  effect  may  be  found.^" 

The  keeping  of  a  house  of  ill-fame  is  generally  a  criminal 
offense.^^  A  person  who  has  let  a  place  to  one  who  uses  it 
for  prostitution  does  not  become  a  keeper  of  a  bawdy  house 
by  failing  to  give  her  notice  to  leave,'*^  although  a  statute 
making  him  liable  for  such  default  would  probably  be  consti- 
tutional.^^ A  person  cannot  be  made  liable  for  renting  a  place 
to  a  reported  prostitute  if  he  had  no  reason  to  believe  that 
she  would  use  the  place  for  illicit  purposes;  for  an  absolute 
prohibition  against  letting  to  prostitutes  would  render  them 
homeless  and  deprive  them  of  shelter.^o 

As  a  nuisance  a  house  of  ill-fame  may  be  closed  and  sup- 
pressed; but  the  house  itself  may  not  be  destroyed,  since  it 
is  capable  of  serving  a  lawful  purpose.^^ 

A  house  of  ill-fame  would  cease  to  be  a  criminal  nuisance 

42  Bishop,  New  Grim.  Law  T,  §  -^^  Massachusetts  Rev.  Laws,  ph. 
J087.                                                                212,  §  19;  Illinois  Grim.  Gode,  §  57; 

43  Gommonwealth    v.    McDonough,      New  York  Penal  Gode,  §  322. 

13  Allen    581.  *^  State  v.  Williams,  30  N.  J.  L. 

44  Commonwealth   v.    Lambert,    12      102. 

Allen,  177;  King  v.  People,  83  N.  49  in  New  York  he  must  remove 
Y.  587;  Commonwealth  v.  Cobb,  120  the  tenant  within  5  days  after  re- 
Mass.  356.  ceiving    notice    from    the    board    of 

45CadwelI  V.  State,  17  Conn.  467.  health.    Tenement  House  Act.   1901. 

40  State  V.  Brunell,   29  Wis.   435;  §  144. 

Drake  V.  State,  14  Neb.  535;  Betts  -".o  Mimkan     v.     Weatherford.     .•>4 

V     State,    93    Ind.    375;    People    v.  Tex.  388. 

Gastro,  75  Mich.  127;   State  v.  Ha-  ''^  Ely  v.  Niagara  Go.  Supervisors, 

berle,  72  Iowa,  138.    Under  the  New  36   N.  Y.  297;   Welsh  v.   Stowell,  2 

York   Tenement   House   Act,    §    145,  Dougl.  (Mich.)  332. 
corroborative  evidence  is  required. 


232  "         ^'"^^'^   -^^D   BEUTALITY.  ^  246 

if  it  were  licensed.  Laws  and  ordinances  go  to  the  extent  of 
forbidding  such  houses  in  designated  places,  perhaps  even 
forbidding  them  outside  of  certain  places;  this,  however,  does 
not  necessarily  logalise  them  in  the  places  not  specially  pro- 
hibited. In  L'llote  V.  New  Orleans^^  the  ordinance  expressly 
provided  that  its  provisions  should  not  be  construed  as 
sanctioning  or  authorising  houses  of  ill-fame  in  the  district, 
outside  of  M'hich  they  were  specially  prohibitetl.  While  prac- 
tically this  operates  as  an  assignment  of  limits,  it  does  not  so 
in  law.  A  regulation  of  houses  of  ill-fame  by  license  would, 
however,  not  be  unconstitutional/"'-^ 

§246.  Practices  in  aid  of  prostitution.— As  regards  prac- 
tices incidental  or  subservient  to  prostitution,  the  law  may 
punish  persons  who  procure  or  furnish  the  occasion  for  illegal 
intercourse,  especially  if  they  do  so  for  gain.  This  is  done  by 
the  German  Penal  Code,  while  our  laws  are  generally  silent 
with  regard  to  procurers  and  procuresses.  In  many  states 
their  practices  fall  under  the  definition  of  abduction.  Recently 
a  statute  of  New  York  has  declared  nuile  persons  who  live  on 
the  earnings  of  prostitutes  to  be  vagrants.^"* 

The  frequenting  of  houses  of  ill-fame  may  be  punished  as 
well  as  the  keeping  of  them,^'^  though  not  covered  by  the  com- 
mon law ;  for  it  can  hardly  be  denied  that  he  who  resorts  to  a 
prostitute  aids  and  abets  prostitution.  However,  as  is  usual 
in  the  analogous  cases  of  drinking  and  gambling,  the  police 
power  confines  its  restraints  to  the  person  who  acts  for  gain 
and  as  a  matter  of  business. 

The  prohibition  against  advertising  or  selling  means,  in- 
struments, etc.,  to  prevent  conception  is  sometimes  classed 
with  provisions  against  obscenity;  moi'e  j>roperly  it  should  be 
regarded  as  a  measure  to  remove  inducements  to  illicit  inter- 

f>2  177  U.  8.  587.    See,  also,  §  170,  from    1870    to    1874.      In    San    Aii- 

089.  tiuiio    houses   wore    liccnsol    in    ISS!) 

f'^  State  V.  Clarke,  .54    Mn.    17.     It  uml      iirostitnlcs      woro      cx.-unincil; 

iri  Htatcfl  by  Cliapin,  Miinifipal  S.-iii-      attor.    10    ii llis    lliis    niclhod     dl" 

itation    in    the    United    States,    tliat  le^nilation     w.is    aljandoned.       It     in 

tlierc  arc  nine  eities  which   attein|)t  also    staled    that    tlie    (irdinances    of 

\>y    lirenses    or    fines    1o    restriet    Ihr  I'enver  provide  that  llie  lic.-ilth  com- 

niirnher    of    honses    of    prostihilion,  inissinncr    may    examine    prostitutes, 

and    that    three    eitirs    eonfine    HU<di  I'ut  that  this  is  not  done, 

houHeH    to    pnrtienlnr    <li8trictH.      In  f'«  Act  Ajiril  .1,  1!)00. 

Ht.  Ijouis,  medical  inspection  existed  os  state  v.  liolkiu,  71  Iowa,  87. 


g  247  BEUTAL  SPORTS.  233 

course.^*^  The  advertising  on  the  part  of  prostitutes  in  covered 
terms  was  held  to  be  an  obscene  publication  under  the  fi-deral 
legislation  relating  to  sending  obscene  matter  througli  the 
mails.^'^ 

BRUTALITY  AND  INHUMANITY.     §§  247-249. 

§  247.  Upon  this  subject  there  is  little  legislation,  and 
that  of  recent  date.  At  a  time  when  physical  suffering 
of  others  was  regarded  with  callousness,  when  the  jx'n- 
alties  inflicted  by  the  law  were  cruel  and  barbarous 
and  were  made  public  spectacles,  when  children  were  univer- 
sally subjected  to  severe  corporal  punishment,  brutality 
was  not  regarded  as  a  matter  of  public  concern.  Now  that 
cruel  punishments  have  been  abrogated  and  made  unconsti- 
tutional, that  the  standards  of  refinement  have  been  raised 
enormously  in  all  classes  of  the  population,  and  the  barbarous 
instincts  which  find  pleasure  in  the  horrible,  have  to  a  great 
extent  been  repressed,  if  they  have  not  disappeared,— brutal- 
ity cannot  be  said  to  be  a  public  evil  of  considerable  magni- 
tude, and  the  law  is  chiefly  directed  against  practices  which  in 
former  times  would  hardly  have  met  with  moral  reprobation. 
Brutal  sports  and  entertainments,  and  cruelty  to  animals,  form 
the  principal  subjects  of  police  legislation  in  this  field. 

§  248.  Brutal  sports  and  entertainments.— The  principal 
legislation  is  against  prize  fights.  These  are  criminal  assaults 
at  common  law,  as  serving  no  useful  purpose  and  tending  to 
breaches  of  the  peace,  and  the  consent  of  one  party  to  re- 
ceiving violent  injury  at  the  hands  of  the  other  being  im- 
lawful  and  void.  The  common  law,  however,  recognises  as 
lawful,  manly  sports  calculated  to  give  bodily  strength,  skill 
and  activity,  and  "to  fit  people  for  defense,  public  as  well  as 
personal,  in  time  of  need."  Playing  at  cudgels  or  foils,  or 
wrestling  by  consent,  there  being  no  motive  to  do  bodily  harm 
on  either  side,  are  mentioned  among  these.i  ^jth  regard  to 
sparring  or  boxing  matches,  where  gloves  are  used,  legislative 
policy  is  not  uniform.     They  are  sometimes  expressly  author- 

56  New    York     Penal     Code,     Sec.  '''  Dunlop  v.  Unitefl  States,  165  U. 

318;  Illinois  Grim.  Code,  §  4,  5,  6;  S.  486. 

Massachusetts   Rev.   Laws,    ch.    212,  i  Commonwealth    v.    Collberg,    119 

Sec.  26.  Mass.  350, 


23-4  VICE  AXD   BEUTALITY.  §  248 

ised,  especially  if  arranged  by  responsible  organisations  -^  some- 
times they  are  held  not  to  be  within  the  meaning  of  a  prize 
fight  to  which  the  expectation  of  reward  and  the  intent  to 
inflict  some  degree  of  bodily  harm  are  deemed  essential  ;3 
sometimes  they  are  expressly  forbidden,  especially  when  they 
take  the  form  of  exhibitions  for  which  an  admission  fee  is 
charged."*  Even  the  witnessing  of  snoh  exhibitions  may  be 
made  unlawful.*'' 

"With  regard  to  prize  fights,  statutes  now  commonly  punish 
what  at  common  law  would  be  merely  acts  of  preparation : 
training,  advertisements,  etc. ;"  we  also  find  legislation  pro- 
hibiting the  exhibition  of  pictorial  reproductions." 

Nevada  is  the  only  state  which  licenses  prize  fights,  pro- 
viding certain  restraints  and  safeguards:  examination  by 
physicians,  prohibition  of  sale  of  liquor,  etc.^ 

Besides  prize  fights,  other  brutal  sports  are  or  may  be  pro- 
hibited :  dog,  cock  and  bull  fights,  long  continued  bicycle 
racing,  etc.^ 

^rany  sports  are  allowed,  Avhicli  while  not  involving  inten- 
tional violent  injury,  are  connected  with  danger  of  bodily 
harm,  and  in  which  a  considerable  amount  of  roughness  may 
be  displayed.  It  is,  however,  conceived  that  the  legislature 
has  absolute  control  over  all  sports  which  are  publicly  ex- 
liibited,  aii'i  its  judgment  that  a  given  form  of  sport  is  brutal 
should  be  accepted  as  eonelusive  by  the  courts.  A  municipal 
(»rdinanc(^  may  on  well  established  principles  be  controlled  l)y 
the  courts  as  to  its  reasoiuibleness. 

Tlic  i)ul)lic  exhibition  of  deformed  ])ers()iis  is  clearly  an  ap- 
peal to  lirntal  instincts  or  to  morbid  curiosity,  and  has  been 
f«)rl)idden   in  some  states.'" 

Th(!  same  is  Inie  of  Ihe  exhibition  of  persons  who  h;ive  be- 
comi'  conspicuous  op  notorious  thi'ough  some  eriminal  act,  the 

-StJitc    V.    ()lyMi|.ic    Cliil.,     Hi    Lii.  "Ait   .l.iiinju-.v   L'it,    1,S!)7. 

Arm.  0.3'),  l'4    I..   H.  A.  \W1.  "  .MasHacliusctta     \\i>\.     Laws,     cli. 

■I  IVopIp   V,   Taylor.   90    Midi.   .'")7(?,  _'1L',  Sec.  79-8(5;    rilinois  (Vim.  Code, 

L'l    T..   If.  A.  L'H7.  Soc,  Wl. 

<  .Now    Vcirk    I'cnal    ((kIc,    S    ■»•■>><;  '"  FlliiuiiH  Act  of  1S99;    MaHsachu- 

llliiioiH  Trim,  Coile,  §  L':j.'"».  hoIIh  Itev.   fiawH,  eh.  'IVl,  Sec.  124,  if 

''  llliridiH  Crin).  Code,  %  'JSH.  flie  doforiTied  pcrHoiis  aro  minors  and 

"  lllinoiH  ('rim.  Code,  §  L'31-234.  inHaiie,  or  if  deformify  is  artificially 

'  Made  a   felony  in   Maine  liy  Act  produced. 
of   1897. 


§  249  CEUELTY  TO  ANIMALS.  035 

glorification  of  crime  boinj^  both  brutal  and  scandalous.     It 
is  forbidden  by  the  statute  of  Illinois  last  cited. 

The  statutes  of  some  states  forbid  the  publication  of  the 
lives  of  criminals/^  or  the  sale  to  minors  of  publications  de- 
voted to  criminal  deeds.^- 

There  are  descriptions  of  tortures  and  horrors  which  are 
not  better  than  obscene  publications  and  appeal  to  very  similar 
instincts;  but  as  they  do  not  fall  under  the  definition  of  the 
obscene,  they  would  require  special  statutory  provision.  News- 
papers which  are  largely  given  over  to  scandalous  matter  have 
in  some  states  been  declared  to  be  criminal  publications.*^ 

§  249.  Cruelty  to  animals— Vivisection.*^— Animals  are  not 
protected  against  maltreatment  by  their  owners  at  common 
law,  except  that  excessive  crueltj^  committed  in  public  may 
be  indictable  as  a  nuisance,  offending  public  decency.*'^ 

Actual  cruelty  is  now  forbidden  in  probably  all  the  states, 
a  peculiar  feature  of  this  legislation  being  the  partial  reliance 
upon  voluntary  associations  for  the  enforcement  of  the  law.*" 

Where  the  law  forbids  cruel  ill-treatment,  abuse  and  torture* 
(as  in  England)  without  further  specification,  it  is  necessary 
to  determine  what  is  cruel.  There  are  practices  which  while 
they  inflict  great  pain  upon  the  animal,  render  it  more  useful 
or  valuable.  It  has  been  held  in  England  that  a  painful  opera- 
tion making  the  animal  more  fit  for  food  (spaying  sows)  is  not 
cruel.* '^  On  the  other  hand,  there  is  a  conflict  of  authority  as 
to  the  dishorning  of  cattle  which  increases  their  marketable 
value.* ^  The  decision  in  the  Callaghan  case  which  sustained 
the  practice,  laid  stress  upon  the  omission  of  the  word  "wan- 
ton" which  was  found  in  a  former  statute.  A  higher  market- 
able value  does  not  necessarily  indicate  greater  usefulness, 
as  the  price  may  be  dictated  by  fancy;  the  docking  of  tails  of 
horses  is  expressly  forbidden  by  some  of  our  statutes.*^ 

11  Alabama,  1894.  Iil2,  Sec.  70-77;  Illinois  Crim.  Code, 

1-  Massachusetts    Eev.    Laws,    ch.  Sec.  50,  57. 

212,  Sec.  21.  17  Lewis  v.  Fermor,  18  Q.  B.  Div. 

13  State   V.    McKee,    73   Coun.    18,  532. 

41t  L.  E.  A.  542;   State  v.  VanWye,  is  Brady    v.    IMcArgle,    14    L.    E. 

136  Mo.  227.  (Irelaud),    174;     Callaghan    v.    So- 

1*  See,  also,   §   152-154.  ciety   Prev.   Cruelty  to   Animals,   16 

15  Bishop  New  Crim.  Law  I,  Sec.  L.  E.   (Ireland),  325. 

597;    State   v.   Karstendiek,   49   La.  i:>  Illinois,      1891,      Massachusetts, 

Ann.  1621,  39  L.  E.  A.  520.  1894,  etc. 

iG  Massachusetts    Eev.    Laws,    ch. 


236  VICE  AND  BRUTALITY.  §  249 

We  should  not  speak  of  "wanton''  cruelty  where  the  owner 
merely  tries  to  save  expense  and  is  callous  to  the  suffering  which 
he  inflicts  upon  the  animal.  Our  statutes,  however,  expressly 
prohibit  practices  of  that  character,  and  prescribe  positive 
regulations  as  to  the  care  of  cattle  in  stockyards  or  while  in 
course  of  transportation  on  railroad  cars.-*^ 

It  is  also  now  frequently  forbidden  to  abandon  disabled 
animals,  and  animals  found  abandoned  and  disabled  beyond 
recovery  for  any  useful  purpose,  may  be  killed.-^  Provision 
is  generally  made  for  compensation  of  the  owner,  if  the  animal 
has  any  value.  The  owner  may,  however,  not  be  deprived  of 
the  property  in  the  animal  or  its  carcass  without  judicial 
process,  unless  his  neglect  of  the  animal  amounts  to  abandon- 
ment of  ownership. 2- 

Legislative  provisions  may  ordinarily  extend  to  the  regula- 
tion of  methods  of  killing  animals.  Where,  however,  a  partic- 
ular method  of  killing  is  prescribed  by  the  ceremonial  law  of 
some  religion,  the  cpiestion  whether  it  is  cruel  or  not  can 
j)robably  not  be  determined  arbitrarily  by  the  legislature  so 
as  to  conclude  the  courts.  In  Switzerland  the  slaughtering  of 
animals  without  previous  stunning  (in  accordance  with  the 
]\Iosaic  Law)   was  prohibited  by  constitutional  amendment.--'* 

Vivisection  for  scientific  investigation  is  not  within  the  spirit 
or  intent  of  the  laws  forbidding  cruelty  to  animals,  unless 
needless  suffering  is  inflicted.  As  a  possible  subject  of  police 
legislation,  vivisection  presents  the  problem  of  two  conflicting 
claims  of  humanity:  the  freedom  of  scientific  research,  and  the 
I)r()tecti()n  oi"  sentient  beings  from  suffering  and  torture.  If 
possible,  both  must  be  reconciled;  hence  the  prohibition  of  vivi- 
Kcction  practiced  williout  suffering  (by  use  of  anaestlietics) 
would  be  unreasonable.  Where  the  torture  inflicted  is  un- 
doubted and  cxtrcnic.  th(!  considerations  are  closely  balanccMl, 
and  Die  decision  should  be  with  tlu'  legislature.  The  con- 
sensus of  civilised  nations  is  in  favf)r  of  allowing  the  practice, 

2"  lllinoiH    Orim.    (^ode,    Sec.    50;  U);cnt8  of  .i  jirivate  society,  is  ques- 

.Ma.HS.     ell.     JIJ,     Soc.     73;     Unilcil  ti(iii!il)Ic. 
SlatoM  I{«'v.  Sliiluk'H,  4:5H()-43!»().  -^  l.oiwli     v.     Koehlor,     Ml      I  nd. 

2>  MaHHUchiiBctts    Rev.     LawH,    di.  1278,  35  L.  R,  A.  682;  King  v.  Hayes, 

(•5,    Hcc,    13.     Till'    i)r()viHioii    «r    tin-  HO  Me,  liOO. 

Ma.HHachiiHi'ftH    Htatiite    aeconliii^'    to  -'•''  Art.     L'.'ibiH    of    Swins    Federal 

wliidi    oxfhiHivi-    iiowcr    to    kill    tlin  ''onHtitution. 
uiiimal    is  given    to   the  oQlccrH   and 


i<  250  CRUELTY  TO  ANIMALS.  237 

though,  if  possible,  under  regulations  mitigating  lU  ._-vils.  in 
England  domestic  animals  may  be  experimented  upon  only 
under  a  permit  from  a  Secretary  of  State. 2 «  In  (jcrmany 
regulations  have  been  issued  for  vivisection  at  universities, 
which  are  without  exception  under  state  control.  They  allow 
vivisection  for  serious  research  and  where  im{)ortant  for  pur- 
poses of  instruction.  Its  practice  in  lecture  rooms  is  specially 
restricted,  and  it  must  be  conducted  by  instructors  or  under 
their  responsibility.  Where  lower  animals  are  equally  avail- 
able for  purposes  of  demonstration,  higher  animals  may  not 
be  used.  Anaesthetics  must  be  used  when  not  inconsistent 
with  the  nature  of  the  experiment.-^ 

The  cruel  treatment  of  animals  for  sport  has  already  been 
referred  to.  Wild  animals  not  being  property,  the  legislature 
controls  the  right  to  hunt  absolutely  and  may  forbid  hunting 
if  deemed  cruel.  In  Massachusetts,  letting  loose  a  fox  to  be 
chased  and  mangled  by  dogs  has  been  held  to  be  indictable 
cruelty .2^  The  using  of  pigeons  or  other  tame  birds  as  targets 
for  purpose  of  amusement  or  as  a  test  of  skill  in  marksman- 
ship has  been  held  to  be  within  the  statutes  against  cruelty  in 
North  Carolina,^^  and  Colorado,  ^s  while  in  Pennsylvania^"  and 
Missouri^^  the  courts,  under  the  circumstances  of  the  cases, 
reached  a  contrary  conclusion.  But  the-  practice  may  un- 
doubtedly be  prohibited  by  statute  as  wanton  and  serving 
no  useful  purpose  that  could  not  be  otherwise  accomplished.-''' 
The  prohibition  against  the  killing  of  song  birds  falls  under 
this  head. ^2 

PUBLIC  AMUSEMENTS.     §§  250-251. 

§  250.  Ground  and  scope  of  police  control.— Public  amuse- 
ments have  engaged  the  attention  of  the  police  power  to  a 
limited  extent,  chiefly  in  so  far  as  they  are  conducted  in  public 

24  Act  of  1876.  27  state  v.  Porter,  112  N.  C.  887. 

25  Similar  restrictions  are  advo-  28  Waters  v.  People,  23  Colo.  33, 
cated   in   the   United    States,   and   a     33  L.  R.  A.  836. 

bill    to    regulate    vivisection    in    the  29  Commonwealth     v.     Lewis,     140 

District  of  Columbia  has  been  Intro-  Pa.  St.  261,  11  L.  E.  A.  522, 

duced    into    the    Senate.      See    copy  3o  State  v.  Bogardus,  4  Mo,  App. 

of    this   Bill   in   Albert   Leffingwell,  215. 

The   Vivisection  Question,  New   Ha-  ^i  Massachusetts    Rov.    Laws,    di. 

ven,  1901.  212,  Sec,  78, 

26  Commonwealth  v.  Turner,  145  32  New  York  Forest,  Fish  and 
Mass.  296,  14  N,  E.  130.  Game  Law,  §  33. 


238 


VICE   AND   BEUTALJTY.  ^  250 


places,  assume  the  form  of  gambling-,  are  connected  with  drink- 
ing, encourage  sexual  vice,  or  are  obscene  or  brutal.  Pro- 
visions involving  either  of  these  elements  have  been  noticed 
before. 

It  is  recognised  in  a  general  yvny  that  there  is  a  possible 
tendency  toward  abuse  or  disorder  inherent  in  public  amuse- 
ments,^^ and  upon  this  ground  the  power  very  generally  vested 
in  municipal  corporations  to  license  them  is  justified. ^^  Their 
tendency  to  encourage  idleness  has  also  been  relied  upon  as  a 
ground  of  restraint,  and  an  old  law  of  New  York,  still  on  the 
statute  books,  entirely  forbids  the  exhibition  or  performance 
for  gain  or  profit,  of  any  puppet  show,  Avire  or  rope  dance,  or 
any  other  side  shows,  acts  or  feats  which  common  showmen, 
mountebanks  or  jugglers  usually  produce  or  perfonn."-'' 

Amusements  are  public  where  admission  is  promiscuous  and 
not  based  upon  personal  selection.  A  private  dancing  school 
has  been  held  in  England  not  to  be  a  place  kept  for  public 
dancing,  although  run  for  hire  and  gain.^^  Under  a  numicipal 
power  to  license,  regulate  and  prohibit  amusements,  it  has  been 
held  in  Illinois,  that  picnics  arranged  by  private  societies  may 
not  he  interdicted  as  nuisances  irrespective  of  the  way  in 
which  they  are  conducted.^^ 

As  a  rule  it  does  not  make  anj'-  difference  for  the  purpose 
of  the  police  power,  whether  the  entertainment  is  provided 
liy  the  public  themselves  (gaming,  dancing,  etc.)  or  furnished 
to  them  in  the  form  of  exhibitions.  As  public  dance  halls  easily 
Ix'come  centers  of  vice,  they  arc  sonK^inics  made  the  subjiM't 
of  special  provisions,  and  masked  halls  to  which  admission 
is  obtained  upon  payment  of  money,  etc.,  may  be  entirely  for- 
bidden.-'^    The  (Jernian  law  distinguishes  between  entertain- 

•i-i  Wclcli     V.     St. .well,     'J     l)uii;,rl.  •in  1  «.  St.  GGO,  Sec.  1. 

(Mich.),   rWL",   1H4(5;   "  TIiouhjiikIs  ..f  ••'"T^illis  v.  Biirf;li;ill,  12  Esp.  7:2-J. 

VdiiiiK   men   are   hired    to   our   jmiI)!!"-  •'"  Uosplaincs    v.    Poycr,     l'J3     111. 

flieafrcH,     in     eun»er|iienee    ol'     tlicir  IMS. 

tteitiK    file    reHort,     ni;,'litly,     of    llic         •"*  iMnss.  ili.   ]{)'.],  Sec.   175.    Entcr- 

|tro(liyiite   and   ahandoiuMl ;    tills   is  a  taiiimcnls    in    places    wlicrc    ll(|ii(ir    is 

iiuiHan<'e, "  sold  are  subject  to  absolute  coiitiol, 

■'*  lllinoiH    F^ev.   Ht.   ('ities  V,    8    1,  :iiid     some     HtateH     forbiil     entirely 

No.    41,    't'l ;     MaBH.    Hcv.     Laws,    cli.  tlie  sale  of   li(|iior  at    tlicati'ical    per- 

]()2,   Hrr.    inS-lMd;    HoHton    V.    Slia f-  foriii.-iiu'cs.     ('alifninia     Tenal    Code, 

ler,   J»    Pick.   4ir.;    Maker    v.    ('iiicin-  Sec.  3o:}, 
iiftti,   11   Ohio  St.  .''j.'M. 


§  251  STAGE  CENSORSHIP.  239 

iiients  of  an  artistic  character,  and  tliose  whicli  do  not  s«'rvt' 
siii)erior  ends.     Of  the  former  class  the  most  imi)ortaiit  is  the 

theatre, 

« 

§  251.  Control  over  theatres— Stage  censorship. ••^  — In  Euro- 
pean countries  the  theatre  is  in  a  special  manner  siih.jcet  to 
police  control. 

In  England,  when  the  stage  lost  its  connection  with  the 
church,  companies  of  players  were  attached  to  the  court  or 
noblemen,  as  whose  servants  they  were  designated  and  under 
whose  license  they  acted.  So  in  1583  a  number  of  selected 
actors  were  enrolled  under  the  Master  of  the  Revels  as  the 
Queen's  company  of  players.  The  municipal  authorities  also 
claimed  the  right  to  control  plays  and  actors  within  their 
jurisdiction,  and  in  1575  all  players  were  expelled  by  them 
from  the  city  of  London.  The  provinces  of  state  and  munici- 
pal control  were  not  clearly  marked  from  each  other,  and  we 
find  the  Privy  Council  and  the  London  city  authorities  partly 
in  conflict,  partly  in  friendly  communication  with  each  other, 
regarding  the  subject.^*^  Statutes  of  Elizabeth^  ^  punished 
common  players  of  interludes  or  minstrels  ''not  belonging  to 
any  baron  of  this  realm  or  to  any  other  honorable  person  of 
greater  degree, ' '  and  down  to  1824  unauthorised  players  were 
treated  as  vagrants — since  1737,  it  is  true,  only  if  they  played 
where  they  had  no  legal  settlement.  By  Walpole's  Theatre 
Act  of  that  year^^  letters  patent  or  the  license  of  the  Lord 
Chamberlain  (who  succeeded  to  the  function  of  the  Master 
of  the  Revels)  were  required  for  the  performance  of  any  in- 
terlude, tragedy,  comedy,  opera,  play,  farce  or  other  enter- 
tainment of  the  stage,  for  hire  or  gain.  Moreover,  no  new 
play,  act,  or  scene  was  to  be  put  upon  the  stage  without  first 
sending  a  copy  to  the  Lord  Chamberlain,  who  was  given 
power  to  prohibit  its  performance  as  he  should  think  fit.  The 
same  act  prohibited  the  issue  of  licenses  for  provincial  cities, 
and  this  metropolitan  monopoly  was  only  gradually  abandoned 
by  special  acts  of  Parliament  allowing  the  establishment  of 
theatres  in  cities  outside  of  London.-* ^     The  present  theatre 

^0  See,  also,  §   239.  -n  Especially  39  Eliz.  cli.  4. 

40  Ordish,  Early  English  Theatres         42  10  George  11,  ch.  28. 
p.  58-61;  as  to  action  of  the  Privy         *"•  8  George  III,  ch.  10;  11  George 

Council    see   Dasent    Acts,    1543,   p.  Ill,  eh.  16. 
109. 


2-40 


VICE  AND  BEUTALITY.  §  251 


act  of  1843^^  requires  justices'  licenses  in  the  provinces,  and 
a  license  from  the  Lord  Chamberlain  in  London,  and  retains 
the  j>rovision  that  new  plays  must  be  submitted  to  the  Lord 
Chamberlain,  who  may  prohibit  them  absolutely  or  for  a  time, 
for  the  preservation  of  good  manners,  decorum,  or  the  public 
peace.  The  English  law  thus  retains  the  censorship  for  the 
stage. 

In  France,  by  administrative  usage,  confirmed  by  decrees 
of  December  30,  1852,  and  January  6,  1864,  theatrical  per- 
formances require  previous  authorisation,  given  in  Paris  by 
the  minister,  in  the  provinces  by  the  prefect  of  the  department, 
and  the  permit  may  be  revoked  at  any  time.  However,  the 
establishment  of  a  theatre  requires  only  notice  to  the  au- 
thorities, and  no  license. 

In  German j^  theatrical  managers  require  a  license,  which 
may  be  refused  only  if  the  authorities  are  satisfied  that  the 
applicant  does  not  possess  the  necessary  moral,  financial  or 
artistic  qualifications.  Actors  do  not  require  a  license.  Cen- 
sorship is  recognised  even  without  specific  statutory  authority 
as  a  measure  for  the  prevention  of  vice  or  disorder,  with  this 
qualification,  however,  that  plays  may,  but  need  not  be,  exam- 
ined before  they  are  performed. 

In  America  theatres  are  generally  classed  with  other  kinds 
of  shows  and  exhibitions  in  making  them  subject  to  the  power 
of  municipal  license.  License  fees  are  not  uncommonly  graded 
according  to  the  character  of  the  entertainment,  so  that  dra- 
matic or  operatic  performances  require  a  smaller  fee  than 
circuses  or  menageries.''-''  The  license  is  required  with  refer- 
ence to  the  place  or  the  kind  of  entertainments  to  be  given,  » 
not  with  reference  to  the  pursuit  of  the  profession  of  actor,  or 
immager,  or  with  regard  to  a  particular  performance.  The 
license  appears  to  be  in  many  cases  a  tax  rather  than  a  means 
of  control,  in  others,  however,  it  may  be  refused  if  the  place 
(•an  be  shown  to  b<!  disorderly  or  disreputable,"***  and  in  Massa- 
chusetts the  license  is  revocable  at  pleasure.^'^  The  criminal 
law  is  generally  ade^iuate  for  dealing  with  obscene  plays  or 

<«r)  &  7  Vift.  ell.  fi8.  App.    Div.    N.    Y.    123,    72    N.    Y. 

*'■- ('h\c:i(ii>    Rov.    (V)(1p,    1897,   Sec.  Suppl.  473. 
99.  «7Rev.  Laws,  ch.  102,  Sec.  172. 

*"  ArmHtronji  v.  Murphy,  65  N.  Y. 


§  251  STAGE  CENSORSHIP.  241 

shows.^**  Censorship  does  not  exist  in  America,  and  may  be 
regarded  as  prohibited  by  the  spirit  of  the  constitution.-*" 
Legislation  has  been  enacted  with  regard  to  places  of  publi<' 
entertainment  in  the  interest  of  public  safety,  to  compel  equal 
treatment  of  the  races  in  the  matter  of  admission,^^  and  to 
secure  public  convenience,  notably  by  requiring  the  removal 
of  hats.s' 

48  People  V.  Doris,  14  Appl.  Div.         so  gee  section  694,  infra. 

N.  Y.  117.  51  So  in  Chicago  by  ordinance  and 

49  Dailey    v.    Superior    Court,    112      by  statute  in   Ohio,   West   Virginia, 
Cal.  94.  Louisiana,  Wyoming  and  Utah. 


16 


CHATTER   X. 

CONTROL  OF  DEPENDENTS. 
INSANITY.     §§  252-256. 

§  252.  Restraints  placed  on  the  insane.— Where  a  person 
is  mentally  so  tleraiiged,  that  he  is  danyerous  to  himself  or 
others,  if  permitted  to  be  at  large,  it  is  clear  that  he  may  be 
given  into  proper  custody;  but  the  statutes  generally  allow- 
also  the  commitment  of  the  insane,  where  the  restraint  is  for 
his  benefit,  or  where  he  is  a  fit  subject  of  care,  treatment  or 
custody. 1  The  commitment  may  be  either  to  an  asylum,  public 
(»r  private,  oi-  to  the  custody  of  friend's  or  relatives,-  the 
statutory  provisions  being  generally  confined  to  the  former. 
Provisionally  and  until  his  case  can  be  properly  disposed  of 
aecortling  to  hnv,  the  insane  may  be  placed  under  restraint 
without  judicial  process,^  but  some  statutes  set  a  limit  of  time 
to  such  temporary  detention,-*  and  in  the  absence  of  statutory 
provision  the  person  imposing  the  restraint  acts  at  his  peril.'' 
A  more  than  provisional  confinement  in  an  asyhnn  can  be 
ordered  only  by  a  court,  and  upon  notice  to  the  alleged  insane,** 
unless  the  condition  ol'  the  patient  makes  a  hearing  dangerous 
or  i)rejudicial  to  his  health."  In  Illinois  there  is  ordinarily 
a  li-iai  by  jury,  and  it  is  provided  that  the  rights  of  the  i)erson 
whose  mental  condition  is  in(|uii'ed  into  shall  be  the  same  as 
thos<'  of  any  defendant  in  a  civil  suit.'*     Uniler  the  same  statute 

»  .MaHHachuHCtts  Rov.  Lhwh,  ch.  87,  "Chase    v.     Hatliaway,     II     .Mass. 

Sec.  M.'{;   llliiiiiLs  K(«v.  St.  cli.  85,  Sec.  222,  as  to  ap])()intinent  of  jjuanlian; 

1;    Ke    Duwdell,    1G9    Mass.    1587,    47  Smith   v.    JVoplc,   (i5   111.    a75;    Gan- 

N,    E.    1033;    Porter    v.    Kitcli,    70  non  v.  Doylo,  J(i  K.  1.  72(5,  5  L.  R.  A. 

Conn.  235,  39  1,.  If.  A.  :\r,:\.  :',.■'.»;   Soulcs  v.    Koljinsoii    (liul.),  00 

=  111.    Rev.    SlatiitcH.    <li.    85,    Sei-.  N.    10.    72(5,   G2    N.    K.   •)<)!);    Re   Ble- 

11;  .New  York  Insanity  Law,  §  (52.  witt,  131   N.   Y.  541,  30  N.  10.  587; 

•i  Colby  V.  .lackHon,  12  N.  11.  52(5;  Re  Lambert,   134  Cai.   626,  (56   Viw.. 

Lott  V.  Hweet,  33  .Mirh.  308;    Denny  851,    55    L.    R.    A.    856;    sec    collec- 

V.  Tyler.  3  Allen,  225.  tion  of  MntlKiritirs  in   note  2.T   L.  R. 

*  MaHMu-hiiHettH  Rev,   LawH,  <h.  87,  A.  737. 

Hec.    52;     IllinoJH    Rev.    Ht.    eh.    85,  7  ciiavanneH    v.     Priestly.    80     la. 

Hiv.  ■'.  :',i(i.  ••  L.  i;.  A.  I'.i:!. 

f'  Van     hciiHcn     v.     .\eweomer,     10  «  Uev.  St.  cli.   s"),  Sec.  67. 

Mi.li.  <tO. 

242 


5^  253  COMMITMENT   OF   INSANE.  243 

the  trial  by  jury  may  be  dispensed  with  ^\■hel•('  I'oi-  any  reason 
it  woukl  be  inexpedient  or  improper;  but  in  tliat  case  the 
judge  must  appoint  a  commission  of  (lualified  pliysicians  to 
be  chosen  by  himself,  who  shall  make  a  personal  examination 
of  the  patient  and  report  thereon."  In  Massachusetts  the 
summoning  of  a  jury  is  in  the  discretion  of  the  judge,'"  but 
the  judge  must  either  see  and  examine  the  alleged  insane  per- 
son, or  state  in  his  final  order  the  reason  why  it  was  not  con- 
sidered necessary  or  advisable  so  to  do  ;• '  a  certificate  of  two 
physicians  is  required,  who  must  not  be  connected  with  the 
place  to  which  an  insane  person  may  be  committed.'-  The 
Supreme  Court  of  the  United  States  has  sustained  the  provi- 
sions of  the  law  of  Alabama  wdiich  required  the  sheriff  to 
take  the  body  of  the  alleged  lunatic,  and,  if  consistent  with  his 
health  or  safety,  to  have  him  present  at  the  place  of  trial, 
although  no  provision  is  made  for  independent  examination  by 
the  court  if  the  lunatic  does  not  appear  at  the  trial.'-'  The 
court  held  that  the  power  was  given  to  the  sheriff  for  the 
purpose  of  securing  the  attendance  of  the  alleged  lunatic  before 
the  court,  and  that  it  would  not  be  presumed  that  he  exercised 
it  for  the  purpose  of  preventing  such  attendance. 

§253.  Provisions  held  defective.— The  law  of  California'^ 
provides  that  two  authorised  medical  examiners  must  give  a 
certificate  showing  that  the  person  to  be  committed  is  insane 
so  as  to  require  care  and  treatment  in  a  hospital,  and  shownng 
the  facts  and  circumstances  upon  which  their  opinion  is  based. 
An  application  for  commitment  accompanied  by  this  certificate 
is  presented  to  a  judge  by  some  friend  of  the  alleged  insane, 
or  by  some  designated  official;  if  by  an  official,  notice  must 
be  given  to  designated  relatives.  The  judge  thereupon  de- 
termines the  question  of  insanity  and  makes  an  order  of  com- 
mitment, and  the  sheriff  makes  provision  for  the  transfer  of 
the  insane  to  the  hospital.  Upon  the  demand  of  any  relative 
or  near  friend  in  behalf  of  such  alleged  insane  person,  the  judge 
shall,  or  he  may  upon  his  own  motion,  order  a  hearing  of  the 
application.  If  the  person  committed  or  some  friend  (^i  his 
behalf  is  dissatisfied  wuth  the  order  of  commitment,  he  may 
within  five  days  demand  a  jury  trial  giving  security  for  r-osts, 

0  Sec.  6.  1-  Sec.  34,  35. 

loEev.   Laws,  ch.   87,   Sec.  42.  i-t  Simon  v.  Craft,  182  U.  S.  427. 

11  Sec.  34.  ^*  Insanity  Law,   March  31,   1897. 


244 


CONTROL  OF  DEPENDENTS.  §  254 


unless  he  is  a  poor  person.  The  law  provides  that  the  com- 
mitted insane  shall  be  allowed  to  correspond  without  restric- 
tion with  the  Superior  Judge  and  district  attorney  of  the 
county  from  which  he  is  committed. 

These  provisions  were  held  unconstitutional  as  depriving 
the  alleged  insane  of  his  liberty  without  due  process  of  law.^-'^' 

The  law  of  New  York  provides  for  notice  to  the  alleged 
insane  before  commitment,  which,  however,  may  be  dispensed 
Avith  for  reasons  to  be  stated  by  the  judge,  in  which  case  sub- 
stituted service  must  be  directed  on  some  designated  person.^^ 
This  substituted  notice  was  held,  by  a  lower  court,  to  be 
insufficient  to  satisfy  the  constitutional  requirement  of  due 
process,^'  but  the  decision  contains  no  thorough  examination 
of  the  question  involved.  In  ^Missouri,  a  law  was  held  uncon- 
stitutional which  provided  that  "the  alleged  insane  person  nnist 
be  notified  of  the  proceeding,  unless  the  probate  court  order 
such  person  to  be  brought  before  the  coui-t,  or  spread  upon 
the  records  of  proceedings  the  reason  why  such  notice  or  at- 
tendance was  not  required;"  but  the  law  contained  no  sub- 
stitutionary safeguards.^** 

J;  254.  Constitutional  requirements.— Tf  in  any  ease  notice 
(if  application  for  an  order  of  connnitment  is  injurious  to  the 
insane,  such  notice  shonlil  not  be  held  to  be  a  constitutional 
requirement;  for  while  as  a  rule  notice  and  hearing  is  of  the 
cssciicf  of  due  process  of  law,  this  is  so  simply  because  in 
nearly  all  conceivable  cases  it  is  a  requirement  of  justice 
which  can  do  iin  harm,  whereas  in  this  case  it  would  i-esult 
ill  hariu  Id  thf  person  intended  to  be  benefited.  The  con- 
stitutional re(iuiremenl  shouhl  l)e  hehl  to  he  satisfied  it"  there 
i.s  substituted  for  actual  i)revious  notice  every  other  safeguard 
whii'h  is  possible  under  the  eii-euiiistances.  The  following 
seem  to  l)e  proper  safeguards:  e.xaminat ion  by  physicians  who 
an'  free  from  suspicion  and  who  shouhl  he  appointed  by  a 
ju(lg«',  slatciiieiit  of  the  reasons  why  inttiee  wo.uld  he  injurious, 
and  full  freedom  ami  opportunity  to  the  alleged  insane  after 
conimitment   to   correspond    with   officials   and   friends   with   a 

*■  Uo    LarnhfTf,    1.34    fliil.    0120,    0(5  )«  Rov.    Sliil.    MisHoiiri,    di.    2<),    § 

I'm',  h:,],  r,r,  I,.   n.  a.  K.'-.(5.  :U\r>'2;    limit    v.   Soiircy,    ir>7    M.    ir)S, 

«n  Infinity    Law,    §   JJ'J.  (57  S.  W.  'JOG. 

it  People  ex  rcl.  Hnllivaii  v.  Wcii- 
<)<-l.  fJH  N.  Y.  Suppl.  948. 


§  255  INSANE   ASYLUMS.  .>45 

view  to  obtaining  a  judicial  liearing  if  he  so  dt'sircs.  If  such 
provision  is  made,  the  commitment  is  in  reality  only  pro- 
visional; but  at  the  same  time  the  person  receiving  the  allegt-d 
insane  is  protected  from  liability  for  false  imprisonment.  In 
so  far  as  the  law  complies  with  these  requirements  it  should 
be  held  to  be  constitutional.  The  California  law  seems  de- 
fective in  not  providing  for  impartial  examiners,  and  in  dis- 
pensing with  notice  without  showing  good  reason  therefor.' '•* 

§  255.  Right  to  discharge.— It  is  also  proper  that  statutory 
provision  be  made  for  the  discharge  of  the  person  confined  or 
restrained,  when  he  has  recovered  sufficiently  to  be  able  to 
be  at  large  again  ;2''  but  even  without  such  provision  it  is  within 
the  power  of  a  court  of  general  jurisdiction  to  order  such 
discharge  in  a  proper  case  upon  habeas  corpus  or  other  appro- 
priate proceedings. 2'  The  right  to  apply  at  any  time  for  dis- 
charge has  been  held  to  reconcile  even  the  absence  of  hearing 
in  the  first  instance  with  the  constitutional  requirement  of 
due  process,  and  if  upon  such  proceeding  the  petitioner  is 
found  to  be  insane  his  detention  may  bp  continued.-^ 

§  256.  Control  of  private  asylums.— While  the  statutes  ap- 
parently require  judicial  authority  for  all  cases  of  more  than 
temporary  restraint  and  commitment  of  insane  persons,  the 
interests  of  the  insane  or  of  the  alleged  insane  also  require  that 
the  provisions  for  judicial  process  before  commitment  should 
be  supplemented  by  a  systematic  control  of  all  asylums,  public 
and  private.  The  control  of  asylums  would  have  to  cover 
the  following  points :  proper  qualification  of  owners  and  man- 
agers, and  adequate  arrangements  in  the  asylum  for  receiving 
and  treating  patients;  the  compliance  with  the  prescribed  con- 
ditions to  be  controlled  by  the  requirement  of  a  license;  and 
constant  supervision  by  public  authorities,  through  require- 
ment of  reports,  and  periodical  visitations.     In  several  states, 

19  See,  also,  State  v.  Billings,   .55  the    court    seems    to    be    excessively 

Minn.   467,   57   N.   W.    794,   43   Am.  strict. 

St.    Eep.    525,    holding    proceedings  ^o  Illinois    Kev.    Statutes,    ch.    85, 

unconstitutional  because  physicians'  sec.    23,    24;     New    York    Insanity; 

examination     not     required     to     be  Law,  §  74. 

under  oath,  and  because  no  judicial  21  Re  I\Larquis,  85  Mo.  (,)15. 

safeguard   prescribed    for   the   hear-  22  Re  Dowdell,   169  Mass.   387.  47 

ing  by  the  probate   judge   or   court  X.  E.  1033;  Re  Le  Donne,  173  Mass. 

commissioner.      The    view    taken    by  550,  54  N.   E.  244. 


246  C'OXTROL  OF  DEPENDENTS.  §  257 

the  powers  g:iven  to  commissioners  of  eliarity  or  lunacy  are 
wide  enough  to  allow  a  control  in  all  these  points.-^  Such 
control  belongs  clearly  to  the  police  power  for  the  protection 
of  safety,  health,  and  comfort.  In  California,  a  county  ordi- 
nance prescribing  arbitrary  and  oppressive  regulations  for 
asylums  was  declared  unreasonable  and  void  ;-"*  but  the  power 
to  control  the  professional  care  of  the  insane  by  reasonable 
rules,  and  by  the  requirement  of  licenses,  was  fully  recognised 
by  the  court. 

JMINORS.     §§257-267. 

§  257.  In  general.  — The  natural  dependence  of  infancy  and 
youth  finds  its  natural  remedy  in  the  institution  of  the  family. 
The  state  generally  leaves  the  care  and  protection  of  children 
to  their  parents,  recognising  a  corresponding  right  of  control, 
restraint  and  discipline.  The  law  also  provides  through  the 
institution  of  guardianship  a  substitute  for  lacking  parental 
power.  The  constitutional  protection  of  property  rights  un- 
doubtedly also  applies  to  persons  under  age,  so  that  they 
cannot  be  deprived  of  the  ultimate  beneficial  interest  in  their 
property,  but  its  management  may  be  given  to  others  in  trust 
lor  llu'iii,  and  they  may  be  placed  under  disabilities,  operating 
loi'  ilieir  benefit,  with  regard  to  acts  of  obligation  and  dis- 
position.-^ 

The  police  power  which  is  exercised  for  the  benefit  of 
minors  oix^rates  j)artly  on  them  exclusively,  partly  by  r(^- 
straints  on  parents  or  guardians  or  on  other  ailults  dialling 
with  minors;  in  either  case  the  liberty  of  minors  is  (miumHv 
restricted.  There  is  no  doubt  that  if  the  law  can  |)i<)liil)it 
minors  frimi  buying  it  can  :ils<t  projiihil  iidults  tVoui  selling  to 
tln'ni.  .\s  iiiinofs  do  not.  enjoy  lull  constitutional  liberty  of 
action,  so  Uie  nornml  liherly  ol'  jkIiiHs  applies  only  to  Ilieir 
relations  1r»  each  other,  .-ind  the  prohihil  ion  ol"  the  law  is 
U'enei-ally  ad<lressed   to  the  ailull   only. 

J^  258.  Restrictive  legislation.  The  resli-aints  placed  upon 
fulnlts  in  their  dealings  with  minors  relate  cliielly  to  the  con- 
tracts ol"  sale  and  I'liiployiiient .  and  to  the  admission  ol'  children 

'-•••'Now   Vnrk   I/iWH,  1880,  eh.  283;  -•'  K\    |):u(<'    Wliilwcil,   1)8  C.-i].   7:5, 

fiiHanity   Tiiiw    Act,    1;    IllinoiH  Kcv.  10  I..   i{.  A.  727. 

Ht.    eh.    8r.,    Hc«',    33;    MaHHachuHcttH  ■■:■•  \ .n]>rnu(>    v.     Nclli^r;ui,    <)     Wail. 

Kov.  I^wH,  <h.  87,  Roc.  0,  30.  L'Ori. 


§  259  MINORS.  247 

to  places  of  public  amusement.  TJie  articles  prohibited  to  be 
sold  are  deadly  weapons,  poisons,  intoxicants,  tobacco,  and 
sometimes  corruptin»'  books;  the  prohibition  as  to  tobacco 
does  not  as  a  rule  apply  to  minors  above  a  specified  af^e;^''  and 
exceptions  are  made  in  some  cases  in  favor  of  a  minor  pro- 
ducing a  written  order  from  his  parent.  The  laws  of  several 
states^'^  forbid  the  employment  of  children  under  fourteen  (tr 
sixteen  in  any  theatrical  or  similar  exhibition.  Nearly  all 
states  regulate  the  employment  of  minors  in  mines  and  facto- 
ries, and  sometimes  in  other  industrial  and  mercantile  estab- 
lishments ;  often  forbidding  the  employment  of  young  children 
altogether,  and  providing  limitations  regarding  the  various 
grades  of  age.  Perhaps  the  most  systematic  and  elaborate 
regulation  of  this  matter  is  contained  in  the  ^Massachusetts 
Labor  Laws  of  1894.2s  q^he  limitations  relate  chiefly  to  hours 
of  labor,  employment  on  dangerous  machinery  or  unhealthful 
occupations,  and  to  certificates  of  school  attendance. 

§  259.  Constitutionality.— The  constitutionality  of  legisla- 
tion for  the  pi-otectiou  of  children  or  minors  is  rarely  ques- 
tioned; and  the  legislature  is  conceded  a  Avide  discretion  in 
creating  restraints.  It  was  held  in  one  notable  case  that  it 
may  forbid  the  employment  of  children  for  acting,  singing  or 
otherwise  performing  in  public,  merely  because  it  believes 
such  prohibition  to  be  for  their  best  interest,  although  the 
performance  does  not  involve  a  direct  danger  to  morals,  (Je- 
cency,  or  of  life  or  limb.2»  Courts  would  probably  not  hesitate 
to  set  aside  restraints  which  would  appear  as  perfectly  unrea- 
sonable either  in  the  matter  of  age  or  otherwise;  this  power 
is  undoubted  wnth  regard  to  ordinances,  and  has  been  applied 
to  a  curfew  ordinance  forbidding  minors  to  be  alone  on  the 
streets  after  nine  o'clock  in  the  evening.^o  The  power  over 
children  is  one  of  reasonable  regulation,  and  in  its  exercise 
arbitrary  discrimination  should  be  held  no  more  constitutional 
than  in  the  case  of  adults.  But  even  the  courts  which  take 
a  very  liberal  view  of  individual  liberty  and  are  inclined  to 
condemn  paternal  legislation  would  concede  that  such  paternal 

20  New  York  Penal  Code,  §  290.  28  Kev.  Laws,  eh.  106,  Sec.  19-44. 

27  So    Massachusetts    Eev.    Laws,  20  People  v.  Ewer.  141  N.  Y.  129. 

eh.  106,  §  45 ;  New  York  Penal  Code,  ^o  Ex    parte    McCarver,    39    Tex. 

§  292,  etc.  Cr.  448,  42  L.  K.  A.  587. 


248  CONTROL  OF  DEPENDENTS.  §  260 

control  may  be  exercised  over  children,  so  especially  iu  the 
choice  of  occupations,  hours  of  labor,  payment  of  wages,  and 
everything  pertaining  to  education,  and  in  these  matters  a 
wide  and  constantly  expanding  legislative  activity  is  exer- 
cised. While  different  grades  in  the  age  of  minority  have  not 
been  constitutionally  fixed,  it  is  a  reasonable  principle  which 
in  practice  is  observed,  that  the  exercise  of  control  must  de- 
crease as  the  age  advances. 

§  260.  Parental  right  of  custody  and  commitment  to  reform 
institutions.  — The  restraints  upon  the  employment  of  children 
ari'  at  the  same  time  restraints  upon  the  parental  right  of 
control.  Our  constitutions  are  silent  upon  family  rights  and 
relations,  and  we  should  have  to  regard  the  parental  power 
not  only  as  a  natural  right,  but  as  a  natural  right  above  the 
power  of  the  state,  to  declare  its  legislative  restraint  to  be 
unconstitutional.  It  has,  however,  been  held  that  the  right 
of  parental  control  is  a  natural,  V>ut  not  an  inalienable  one;-*^^ 
that  there  is  no  parental  authority  independent  of  the  supreme 
power  of  the  state  S'^  that  in  other  words  the  parental  right 
is  no  vested  right.-'^  Tlu'i-c  is  indeed  a  tendency  to  treat  this 
right  altogether  as  a  power  in  trust,  Avhich  may  not  only  be 
checked  in  the  case  of  manifest  abuse,  but  the  exercise  of 
which  may  be  directed  by  such  rules  as  tlio  legislature  may 
establisli  as  best  calculated  to  promote  the  welfare  of  the 
.-hiki. 

'I'lic  principle  of  supreme  state  control  lias  received  strong 
expression  in  the  statutes  providing  for  the  commitment  of 
neglected  or  destitute  children  to  reform  or  industrial  schools, 
such  as,  within  a  comparatively  recent  ])erio(l.  have  been  estab- 
lished in  most  ol'  tlu'  states.'"  We  are  lieri'  confronted  witli 
the  <|nestion  :  Ts  it  competent  for  the  state  to  inflict  upon  a 
child  such  (lepi'ivat  ion  of  lilicrty  ;is  is  insc])iii';il»le  I'l-oni  c(nii- 
Miitnient  to  an  instilulioii,  whei'c  the  child  has  coniniitted  no 
ofVcnse?    An  act  of  Illinois  of  18(17  i)rovi(le<|  1h;it  wlu'ii  a  child 

•■'>  Kx     pnrtp     f'ronsc,  I      W  liiirl.          -i'' Hon  not  t    v.    l?cniio(t,    1.3    N.    .1. 

(\'n.)   '.).  V.q.  111. 

MiTccin    V.     Podpio,  LT)    Woml.          •'*  .MaHHapljusettH    Rov.     Tjiiws,    <li. 

(.\,   Y.)   04.     Hoc   I'ooplo  V.    PicrmHi  M.S,    Hoc.    :?7-.39;     IllinoiH    Rov.    Stat- 

(N.    v.),   68   N.    K.   *JJ:J.  as   to   <lnly  iitoH.  Title  HcIiooIh;  Now  York  Poiinl 

iiiwlor  Htatute  to  furniHii  niodical  at-  Code,  §  2*,*]. 
tonflancc. 


^261  COMMITMENT  TO    KEFORM   INSTITUTIONS.  249 

between  six  and  sixteen  should  be  brouj,dit  before  a  police 
magistrate  who  should  have  reason  to  believe  hiiu  a  vagrant 
or  destitute  of  proper  parental  care  or  growing  up  in  mendi- 
cancy, ignorance,  idleness  or  vice,  he  should  cause  him  to  be 
brought  before  a  judge  of  a  higher  court.  The  parent  was 
then  to  be  summoned  to  show  cause  why  the  child  was  not  to 
be  committed,  and  if  the  judge  believed  that  the  child's  moral 
welfare  and  the  good  of  society  required  it,  he  was  to  order 
him  to  be  sent  to  the  reform  school  for  safe  keeping,  education, 
employment  and  reformation,  where  he  was  to  be  kept  until 
the  age  of  twenty-one  years.  The  act  was  held  to  be  unconsti- 
tutional, as  depriving  the  child  of  his  liberty,  not  for  any 
offense,  but  for  misfortune  onl}^  the  confinement  in  the  re- 
formatory being  regarded  as  virtual  imprisonment.^^  An  act 
of  the  same  state  of  1879  provides  that  any  female  infant  who 
frequents  streets  for  the  purpose  of  begging,  who  having  no 
permanent  place  of  abode,  proper  parental  care,  or  sufficient 
means  of  subsistence,  is  a  wanderer,  or  who  consorts  with 
vicious  persons,  or  is  found  in  a  house  of  ill-fame,  may,  on 
petition  to  the  proper  court,  on  notice  to  the  parent,  hearing 
of  counsel,  and  the  verdict  of  a  jury,  be  committed  to  an 
industrial  school,  which  is  to  provide  a  home  and  proper  train- 
ing school.  This  act  w^as  upheld,  the  court  reconciling  the 
decision  with  that  in  the  Turner  case  on  the  ground  that  the 
reform  school  in  the  Turner  case  was  looked  upon  as  a  prison, 
while  here  there  was  only  such  restraint  as  was  essential  to 
proper  education. ^^  In  1883  an  act  similar  to  that  of  1879 
was  passed  for  the  reformation  of  boys. 

§  261.  Dependence  or  delinquency.— The  prevailing  judicial 
opinion  is  that  commitment  to  a  reform  institution  is  not  pun- 
ishment. "This  is  not  a  penal  statute,  and  the  commitment  to 
the  public  officers  is  not  in  the  nature  of  punishment.  *  *  * 
It  does  not  punish  the  infant  by  confinement,  nor  deprive  him 
of  his  liberty;  it  only  recognises  and  regulates,  as  in  providing 
for  guardianship  and  apprenticeship,  the  parental  custody, 
which  is  an  incident  of  infancy."^"  "We  cannot  understand 
that  the  detention  of  the  child  at  one  of  these  schools  should  be 
considered  as  imprisonment  any  more  than  its  detention  in 

35  People  V.  Turner,  55  111.  280.  3"  Faruham    v.    Pierce,    141    Mass 

30  Ex  parte  Ferrier,  103111.  367.         203. 


250  COXTKOL  OF  DEPENDENTS.  §  262 

the  poorhoiise,  any  more  than  the  detention  of  any  child  at  any 
boardino;  school,  standing  for  the  time  in  loco  parentis  to  the 
child.  *  *  *  When  the  state,  as  parens  patriae,  is  compelled 
by  the  misfortune  of  the  child  to  assume  for  it  parental  duty, 
and  to  charge  itself  with  its  nurture,  it  is  compelled  also  to  as- 
sume parental  authority  over  it."^^  But  it  seems  to  follow 
from  the  distinction  thus  recognised,  that  where  the  child  is 
charged  with  the  commission  of  a  crime  and  by  the  commit- 
ment the  fact  of  his  having  done  the  act  is  established,  he  has 
the  right  to  have  this  question  tried  with  the  usual  constitu- 
tional safeguards  to  the  accused  although  the  punishment  be 
only  commitment  to  the  reformatory.^** 

If  the  state  chooses  to  regard  the  delinquent  child  as  de- 
pendent or  defective  and  to  commit  it  not  by  reason  of  any  par- 
ticular offense,  but  on  account  of  its  general  destitution,  the 
delinquent  child  is  not  subjected  to  any  hardship,  and,  there- 
fore, cannot  complain,  although  incidentally  such  treatment 
may  cut  off  the  right  to  jury  trial.  Great  harm,  however,  may 
be  done  to  children  who  are  merely  destitute  by  placing  them 
in  the  same  institutions  with  other  children  who  are  vicious 
;iii(l  morally  depraved.  Separate  pi-ovision  is,  therefore,  gen- 
i-rally  made  for  destitute  and  neglected  children  and  for  juve- 
nile offenders. 

Jj  262.  Notice  to  parent.— As  regards  the  effect  of  the  com- 
mitmt'nt  upon  the  jnirent,  it  seems  that  if  control  and  custody 
<il"  Hie  child  are  rights  of  the  parent,  they  cannot  be  taken 
away  from  a  parent  in  any  particular  ease  without  due  process 
of  law.  Hence  the  pai'eiil.  unless  he  has  relincpiished  his  right 
by  abandoning  the  child,  is  entitled  to  notice  and  to  an  oppor- 
tiinity  to  ho  heard.  In  some  states  commitment  without  notice 
In  llie  parent  lias  been  upheld,  upmi  the  gi-onnd  llial  it  does 
not  efdiejude  tile  rights  (if  Hie  parent,  wlio  may  (piestion  the 
legality  of  the  eniniiiit  iiieiil  ii|)iui  Inibcas  corpus  pi'oeeedings.'" 
In  Tennessee  where  a  Judge  in  eoiiiuiii  I  iiig  til,,  cliild  iLinoi'ed 
the  Htatutory  r('(|uin'ments  ol"  a  proceeding  in  oi^ii  coiirt  and 
acted  upon  his  personal  kiio\vle(|ge,  the  court  refused  to  inter- 
I'.M-e  by  lidhcds  corpus  because  it   appeared   that  the  delentiou 

•■"•Milwaukee    ImliiHtrial    Scliool    v.  see   l,ee   v.    Mr('le!l:iii<l.    1.'57    Inil.   84, 

Milwaukee  <*cMiiity,   -Id   Wit*.    .TJM.  (50  N.   K.  (i!)L'. 

-"State    V.    Hay,    (5:5    N.    11.    40(5;  •<•  Hoiihc    el'    ii'ilii;:.'    \.     Hy.tn,    :i7 

I'rottcott   V.   Hfate,    l!»   Oh,   Hf.    184;  Oil.  HI.  107. 


§  263  COMMITMENT    TO    REFORM    INSTITUTIONS.  951 

was  for  the  benefit  of  the  cliild."  'I'he  hearin^r  upon  tli.-  ap- 
plication for  habeas  corpus  seems  here  to  have  been  treat«'(l 
as  equivalent  to  the  statutory  proceeding:  in  open  court.  The 
riyht  of  the  parent  to  notice  and  hearing  is  usually  recog- 
nised by  the  statutes,  but  notice  and  hearinjr  may  be  of  a  sum- 
mary nature ;  in  New  York  the  commitment  is  authorised  upon 
such  notice  as  the  magistrate  may  deem  sufficient.-*^  There 
seems  to  be  no  doubt  that  the  parent  is  not  entitled  to  a  jury 
trial,  for  the  proceeding  is  neither  criminal  nor  is  it  a  civil 
proceeding  known  to  the  common  law.'-'' 

§  263.  Discharge  from  institution.— As  the  original  com- 
mitment of  the  child  must  be  justified  by  the  condition  of  the 
child  and  the  absence  of  proper  parental  care,  so  also  the  con- 
tinuance of  the  custody  in  the  institution.  It  was  one  of  the 
points  relied  upon  by  the  Supreme  Court  of  Illinois  in  the 
Turner  case^^  that  no  provision  was  made  by  the  act  for  the 
discharge  of  the  child  after  it  was  once  committed.  It  is  now 
provided  in  Illinois,  that  the  trustees  of  the  institution,  as  well 
as  the  governor  of  the  state,  shall  have  the  power  to  discharge 
at  any  time ;  and  in  the  case  of  boys  special  provision  is  made 
for  application  to  the  court  for  discharge.-*^  Probably  the 
court  has  the  same  power  with  regard  to  girls,  though  the 
statute  does  not  mention  it.  In  Massachusetts  the  right  to 
demand  a  discharge,  where  the  power  to  discharge  exists,  is 
allowed  without  express  statutory  provision  ;"**'  in  New  York 
the  right  to  restore  the  child  to  the  custody  of  the  parent, 
where  the  later  has  reformed,  is  held  to  be  within  the  general 
equitable  powers  of  a  court,-*"  and  in  Illinois  it  was  said  that 
the  constitution  clothes  the  judiciary  with  ample  authority 
to  correct  any  abuses  under  the  statute.'^  In  Illinois  the  insti- 
tutions to  which  dependent  boj^s  and  girls  are  committed  art> 
private  corporations.     The  entrusting  of  a  child  to  the  care 

•n  state  V.   Kilvington,   100   Tenn,  **  55  Illinois,  280. 

227,  41  L.  R.  A,  284.  •».-.  Act  June  23,  1885. 

42  Penal    Code,   Sec.    291.     Service  46  Farnham   v.    Pierce,    141    Mass. 

ol'  process  upon  the  child  itself  has  403. 

been   held   to   be   unnecessary.    Wil-  47  Re    Knowaek,    15S    X.    V.    482, 

Idnson  v.  Board  of  Children's  Guar-  53  N.  E.  676. 

djans,  158  Ind.  1,  62  N.  E.  481.  48  County    of     .McLean     v.     llum- 

43County    of    McLean    v.    Hum-  phreys,  104  111.  378. 
phreys,   104  111.  378. 


252  CONTEOL  OF  DEPENDENTS.  §  264 

of  a  private  institution  is  clearly  analogous  to  the  practice  of 
appointing  private  individuals  as  guardians.  There  is  no 
doubt  that  the  state  may  exercise  the  fullest  control  over  all 
private  institutions  for  the  care  of  children."*^  Statutes  may 
also  provide  that  the  authorities  having  control  of  children 
shall  have  the  same  right  as  parents  and  guardians  to  bind 
out  a  child  as  an  apprenticed"^  This  appears  to  be  now  one  of 
the  chief  applications  of  the  custom  of  apprenticing  minors 
which  has  largely  fallen  into  disuse.  Apprenticeship  is  in 
most  of  the  states  regulated  by  statute,  and  the  constitution- 
ality of  the  institution  is  not  questioned. 

vi  264.  Compulsory  education.— One  of  the  most  important 
of  parental  rights  is  that  of  directing  the  education  of  the 
child.  While  the  legislative  practice  in  the  United  States 
has  for  a  long  time  left  this  right  free  and  unregulated,  it  is 
certainly  not  beyond  the  exercise  of  the  police  power.  Com- 
pulsory education  laws  have  been  enacted  in  a  large  number 
of  states,  and  their  constitutionality  has  been  sustained  where 
drawn  in  question.'  They  proceed  upon  the  theory  that  the 
parent  has  no  right  to  leave  the  child  uneducated;  and  they 
fix  the  age  up  to  which  education  is  required.  In  some  states 
the  same  object  is  also  sought  to  t)c  reached  by  forbidding 
employment  of  children  except  on  proof  of  attendance  at 
school  for  a  prescribed  period.^ 

^  265.  Truant  schools.— A  peculiar  exercise  of  the  power  of 
compulsory  education  is  to  l)e  found  in  the  estal)lishment  of 
so-c;i1I(m|  ti-uant  or  parental  schools.-'  Under  the  law  of  Illinois. 
children  wlm  an'  liahilual  li'iiants  or  jiersistently  violate  school 
regulations  and  jnove  uncontrollable  by  the  ordinary  school 
discipline,  may  be  eonnnilled  1o  an  institution  wliei-e  they  are 
ki'j)t  for  ;i1  least  four  weeks,  after  wliicli  lime  Ihev  may  be  dis- 
charged i)rovisionally  on  parole.     Tlu'  institution   is  primai-ily 

*»  I.UWH    of    New    York,    1884,    di.  138,    Sec.    r,;     llliiu.is    Act    .lunc    IH, 

43H;    MaHmichuHottH    Rev.    L^wh,   di.  1H8.3,    Sec    11;     rcojile    v.    Woiason- 

83,  lirciiHCH  for  bimrfliiij;  Iiohhoh  I'cir  liacli,  00   N.   V.   385. 

iiifaiitH  imiliT  two  vcarH;    IcjjiHiiitioii  •  State    v.    Hailoy,    l.')7     IikI.    3:^4, 

hail    Ijccn    enacted    in    recent    yeurs  <)1    N.  I-.  73(1. 

renlrainin^   tlu!   |»la<'iiijj   out   of  cliil-  -  MaHHaclniHetlH     Rev.      Laws,     cli. 

•  Iren    from    other   Htaten    l»y    cliarita-  M)(),  Sec.  28-;{r>. 

l>le  HociefieH.  i  Illinois  Act  of  189i);    MaHH.  Kev. 

f'"  LawH    of    New    York,    1884,    <li.  l.aws,  <li.  46. 


§  266  POWER  OVER  EDUCATION.  253 

a  school,  and  no  child  can  be  committed  to  it  who  has  ever 
been  convicted  of  any  offense  punishable  by  confinement  in  any 
penal  institution.  Before  committing  the  child,  notice  is  given 
to  his  parent  or  guardian  who  may  resist  the  commitment.  It 
is  not,  however,  necessary  that  the  parent  should  be  charge- 
able with  any  fault;  the  commitment  is  a  measure  taken 
against  the  child  on  account  of  the  child's  misconduct,  and 
that  the  parent  is  deprived  of  custody,  is  an  inevitable  inci- 
dent to  such  measure,  the  parent  bearing  the  consequences 
of  his  child's  misconduct,  just  as  a  child  may  be  deprived  of 
parental  care,  where  the  parent  is  imprisoned.  Notice  to  the 
parent  is  necessary  to  charge  him  with  the  child's  support 
at  the  truant  school;  if  indeed  the  duty  of  such  support  can 
be  thrown  upon  the  parent."* 

§  266.  Power  over  private  education."'— The  law  does  not 
interfere  with  the  freedom  of  private  education.  The  com- 
pulsory school  laws  recognise  public  and  private  schools  as 
equal,  and  are  satisfied  with  competent  private  instruction 
otherwise  than  in  a  school.'^  Even  this,  however,  implies  that 
the  state  must  have  power  to  judge  what  is  competent  in- 
struction, and  it  may  consequently  insist  that  certain  branches 
of  knowledge  be  taught.'^  Most  states  do  not  forbid  private 
schools  in  which  instruction  is  conducted  in  another  than  the 
English  language,  but  in  Massachusetts  the  compulsory  school 
law  is  satisfied  only  by  attendance  at  a  private  school  where 
the  instruction  in  all  the  studies  required  by  law  is  in  the  Eng- 
lish language.^  For  the  purpose  of  fostering  national  spirit  the 
state  may  require  the  observance  of  holidays,  or  other  appro- 
priate practices;  an  act  of  Illinois  of  1895  required  that  the 
national  flag  be  displayed  on  all  buildings  used  for  educational 
purposes;  in  1897  the  act  was  amended  so  as  to  apply  only 
to  public  buildings;  but  the  regulation  can  hardly  be  regarded 
as  invalid  even  as  applied  to  private  institutions.  The  re- 
(|uirement  of  a  license  to  conduct  a  private  school,  and  its  visita- 
tion by  public  authorities,  would  certainly  be  legitimate.     In 

4  Illinois  Act,  §  7.  ^  So     English     grammar,     N.     Y. 

^'See,  also,  §  698.  Laws  1894,  ch.  671,  §  3;   Massacbu- 

G  Illinois  Act,  June  11,  1897,  Sec.  setts  Rev.  Laws,  ch.  42,  Sec.  1. 

1 ;  Massachusetts  Rev.  Laws,  ch.  44,  s  Rev.  Laws,  ch.  44,  Sec.  2, 

Sec.  1;   New  York  Laws,   1894,  ch. 

671. 


254  CONTROL  OF  DEPENDENTS.  §  267 

Illinois  all  universities,  colleges,  seminaries,  and  academies, 
or  other  literary  institutions  may  be  required  by  the  State 
Superintendent  of  Public  Instruction  to  report  to  hini.'^  In 
one  respect,  however,  education  must  be  constitutionally  free, 
namely  in  so  far  as  it  is  essential  to  the  freedom  of  religion ; 
for  the  free  exercise  of  religion  implies  teaching  as  well  as 
worship.  The  state  could  certainly  not  prescribe  the  religious 
education  of  children,  in  so  far  as  it  would  thereby  establish 
a  religion,  or  discriminate  in  favor  of  one ;  nor  could  it  sup- 
press all  private  schools,  since  religious  denominations  Avould 
thereby  be  prevented  from  inculcating  their  doctrines  in  the 
most  effectual  way. 

§  267.  Power  over  graduate  instruction.— If  regulation  of 
education  is  based  upon  the  power  over  minors,  the  same 
principles  would  not  extend  to  graduate  schools  teaching  per- 
sons of  full  age.  The  statement  to  be  found  in  a  ^Massachusetts 
case  that  all  youths  associated  at  a  college  for  education  are 
properly  regarded  as  minors  whether  of  21  ^''ears  of  age  or 
under,  can  hardly  be  regarded  as  sound.^^'  In  New  York  the 
power  to  incorporate  higher  institutions  of  learning  is  vested 
in  the  State  Board  of  Regents,  which  may  prescribe  appro- 
lu'iate  conditions;  but  this  power  applies  only  to  institutions 
conferring  degrees,  and  probably  only  to  such  as  desire  incor- 
poration, or  propose  to  assume  the  name  of  university  or 
college.*  1  That  conditions  may  be  annexed  to  the  grant 
of  corporate  privib^ges  is  clenr,  and  the  restriction  of  the 
I'ight  to  confer  degrees  or  to  use  misleading  designations  can 
be  sustained  as  an  exercise  of  the  police  power  to  prevent 
fraud  upon  the  public. 

PAri'ICTUSM  AXn  r'T[.\TMTV.     §§268-271. 

55  268.  General  attitude  of  the  state.— During  the  Middle 
Ages  llie  relifl'  (if  the  |t(>(ir  \v;is  iii;iinly  left  1o  llic  ( 'liuicli. 
Tht!  earlier  English  le^islali<»ii  dejilt  with  pauperism  only 
through  1hi'   punishiiieiil   of  v.igalxmds.      I'aupei-s  who  eatuiot 

he    tre;i|t(|    ;is    cl-ilirHials    hegili    to    he    th>'    object    of    legislation 

froni  the  end  of  the  (iriecMth  eeiitur\.  It  was  provided  in 
l."):n'~   that  beggars   not    ;d»h'   to   wock   should    procure   httccs 

"  Krv.  Slat.  <|i.    iL'ij,  Sfc.  ."..  >i  I'liivcrsily    Law,   §   27-3:5. 

i'-H«»i)i'r     V.     II:irv:ii.l     ( •(,lli.^r,.,     ]  > -  L"J  Tl<'nry  VI 1 1,  ell.   1 2. 

rick.   177. 


g  269  STATE    AND    PKIVATI^    CHARITY.  255 

of  license  to  beg.  Five  years  latori"'  open  begging  was  pro- 
hibited, and  it  was  provided  that  vohnitary  alms  were  to  be 
gathered  and  distributed  by  the  clergy;  in  1552  a  collector 
of  alms  was  directed  to  be  appointed  by  the  inhabitants  of 
the  parish,  who  were  exhorted  and  admonished  to  contribute, 
and  since  1563  those  obstinately  refusing  to  give  might  be 
taxed  by  the  justices  of  the  peace.  Finall}^  in  IGOl,'^  a  regu- 
lar system  of  public  poor  relief  based  on  taxation  was  insti- 
tuted, which  has  become  the  basis  of  our  law  on  the  subject.'-'' 

At  present,  the  activity  of  the  state  for  the  relief  of  poverty 
and  suffering  consists  mainly  in  the  management  of  funds 
and  institutions,  i.  e.,  in  the  exercise  of  proprietary  powers. 
All  such  relief,  however,  also  involves  the  taxing  power,  and 
under  this  head  constitutional  questions  have  arisen  as  to 
what  kind  of  distress  is  relievable  by  the  public,  Avhich  need 
not  be  discussed  in  this  connection.^" 

The  police  power  may  be  called  into  play  in  this  matter, 
first,  in  the  relation  of  the  state  to  private  charity;  second, 
in  the  imposition  of  the  duty  of  support  upon  designated 
persons;  and  third,  in  the  adoption  of  restrictive  measures 
against  paupers. 

§  269.  The  state  and  private  charity.— The  state  recognises 
and  encourages  the  relief  of  suffering  through  private  agen- 
cies, and  its  relation  towards  private  charity  is  therefore 
mainly  one  of  furtherance  and  aid,  by  granting  facilities  for 
incorporation,  exemption  from  taxation,  etc.  The  excessive 
accumulation  of  wealth  in  the  hands  of  private  charitable 
institutions  is,  however,  regarded  as  being  contrary  to  public 
policy,  and  has  given  rise  to  restrictive  legislation.  This 
legislation  consists  partly  in  the  limitation  of  the  right  to 
bequeath  or  devise,  partly  in  a  limitation  of  the  power  of 
the  charitable  institution  to  acquire  real  or  other  property. 
The  right  of  testamentary  disposition  being  purely  statutory, 
its  regulation  or  limitation  is  freely  conceded  to  the  legislative 
poAver.i'  The  same  is  true  of  the  control  which  the  state 
exercises  over  the  creation  of  trusts,  and  its  power  to  grant 

13  27  Henry  VIII,  ch.  25.  454 ;      North     Dakota      v.      Nelson 

14  By  43  Elizabeth,  ch.  2.  County,  1  N.  D.  88. 

15  See  Fariiam,  Poor  Laws,  Pol.  i'  United  States  v.  Perkins,  1G3 
Se.  Quarterly  III,  282.  U.  S.  625. 

i«  Lowell    V.    Boston,    111    Mass. 


256  COXTEOL  OF  DEPENDENTS.  §  270 

or  withhold  corporate  privileges  includes  the  power  to  de- 
termine how  much  property  a  corporation  shall  be  allowed 
to  hold. 

Apart  from  the  matter  of  excessive  wealth,  the  manage- 
ment of  charitable  funds  and  institutions  may  give  rise  to 
mischief  or  public  scandal,  and  therefore  call  for  state  con- 
trol. Without  statutory  provision,  a  court  of  equity,  either 
as  the  representative  of  the  parens  patriae,  or  in  the  exercise 
of  its  general  jurisdiction  over  trusts,  or,  perhaps,  under  the 
powers  created  in  England  by  43  Eliz.  ch.  4  (if  these  are  re- 
garded as  part  of  the  common  law  in  this  country)  may  inquire 
into  the  management  of  an  eleemosynary  corporation,  and 
redress  abuses.^*  This  power  Avould  be  adequate  to  deal  with 
perversions  of  the  original  trust,  or  other  plain  cases  of  mis- 
management, but  would  hardly  extend  to  dealing  with  a 
policy  believed  to  be  dangerous  in  its  tendencies  or  conse- 
(juences. 

Police  legislation  regarding  charitable  institutions  in  the 
interest  of  safety,  health,  morals,  and  comfort  would  be  clearly 
authorised  on  general  principles;  and  legislation  for  the  en- 
forcement of  prescribed  principles  and  policy  of  management 
would  ill  most  cases  be  justified  under  the  reserved  power 
to  alter  and  amend  corporate  charters. 

j;  270.  Compulsory  support  by  relatives.— The  statute  of 
Elizabeth  cast  the  duty  of  supporting  impotent  poor  in  the 
first  place  upon  father  and  grandfather,  mother  and  grand- 
mother, and  children."'  The  duty  has  been  further  extended 
by  American  statutes.  Thus  it  is  provided  in  Illinois:  "Tliat 
every  poor  person  who  shall  be  unable  to  earn  a  livelihood 
in  eonsetiuence  of  any  bodily  infirmity,  idiocy,  lunacy,  or  other 
unavoidable  cause,  shall  Ix'  supported  by  the  father,  grand- 
father, mother,  prandniolliiT.  cliildrcn,  grandcliildi-cii,  brothers 
or  sisters  ol'  siii-ti  pooi-  iici'son.  if  tliry,  oi*  cillicr  of  lln'iii,  be 
of  sufficMent  ahilily  :  Provided.  Ili.it  when  any  persons  become 
pauiKTs  from  inlcinperanec,  or  oIIh  r  h.id  condnct,  they  shall 
not  he  entitled  to  support  from  ;iiiy  i-cl;ition,  except  parent 
<ir  eliild."'"  The  eoMstitutionalilx'  ol"  llie  nMinironn'iit  ms  ap- 
plied to  a  brother  was  upheld   by   tiic  Suprciiic  ('oiiit   of  Illi- 

•»  Story,      Efjuily      .Tiiri8pnnlcnco,  *"  Rov.  St.  di.    107,  Sec.   1;    Mass. 

Hqv.   1I.^«,  o\   H<v|.  Hen'.  Laws,  cli.  si,  S   1'>. 

"•  1   HInckHtone,  448,  454. 


S  271  KESTKAINTS  ON   PAUPERS.  257 

nois.-i  fpjig  court  recognised  the  existence  of  a  moral  and 
natural  duty  on  the  part  of  the  brother,  and  argued  that  the 
state  might  protect  the  public  from  loss  occasioned  by  thi* 
neglect  of  that  duty,  by  transforming  the  imperfect  natural 
duty  into  a  statutory  legal  obligation.  The  statute,  it  was 
said,  did  not  extend  to  such  distant  collateral  relatives  as 
that  the  courts  could  pronounce  it  unreasonable  and  void. 
From  this  last  remark  it  may  be  inferred  that  the  duty  cannot 
be  indefinitely  extended,  and  that  the  test  of  the  validity  of 
the  statute  must  probably  be  found  in  the  previous  existence 
of  a  natural  duty.  In  some  of  the  German  states,  the  master 
is  required  to  bear  the  expense  of  the  treatment  of  a  domestic 
servant  during  illness,  if  neither  the  servant  nor  his  relatives 
are  able  to  assume  the  burden  p  2  it  must  be  extremely  doubt- 
ful whether  our  courts  would  regard  such  an  obligation  as  the 
enforcement  of  a  natural  duty. 

§  271.  Restrictive  measures  against  paupers. 2;5_^inerican 
statutes  commonly  authorise  local  authorities  to  provide  for 
poor  relief  in  poorhouses  established  for  that  purpose.  They 
assume  that  the  pauper  can  be  induced  to  enter  the  institu- 
tion, and  make  provision  for  the  case  that  he  cannot  be  con- 
veniently removed  on  account  of  infirmity  or  sickness.^-i  The.y 
do  not  provide  for  compulsory  rem.oval,  and  it  should  be  noted 
that  the  English  poor  laws,  even  with  the  strongest  desire  to 
restrict  outdoor  relief,  only  indirectly  enforced  the  entering 
into  a  poorhouse,  by  making  the  refusal  to  enter  it  a  bar 
against  relief.  Further  than  this,  it  seems  the  state  cannot 
go.  Should  the  pauper  refuse  to  enter,  and  also  refuse  to 
work  where  work  is  possible,  he  can  be  dealt  with  on  the 
charge  of  criminal  idleness,  and  confined  by  way  of  punish- 
ment. New  York  also  provides  that  an  inmate  of  a  state  alms- 
house who  leaves  the  same  without  being  discharged,  is  pun- 
ishable for  soliciting  aid  within  a  year  thereafter  ;-5  and  the 
solicitation  of  aid  from  the  public  or  from  strangers  may  prob- 
ably be  entirely  forbidden  if  public  relief  is  offered  in  an 

asylum. 

On  the  other  hand,  the  compulsory  removal  of  a  pauper 

21  People  V.  Hill,  163  111.   186,  46  23  See,  also,  §  431,  491. 

j^,  E.  796.  24  New  York  Poor  Law,  §  20,  23. 

22  Prussian     Law,     November     8,  25  New  York  Poor  Law,  §  93. 
1810,  See.  68. 

17 


258  CONTKUL  OF  DEPENDENTS.  §  271 

to  the  locality  in  which  hr  lias  a  settlement  is  not  uncommonly 
provided  for.     The  policy  of  removal  was  introduced  in  Eng- 
land by  13  and  1-4  Car.  II,  c.  12.  made  permanent  by  12  Anne  st. 
I  c.  18.2**  The  statutes  treat  this  removal  as  a  matter  in  which 
the  conflicting  interests  of  dilferent  local  districts  are  primarily 
if  not  exclusively  concerned.     The  removal  operates  of  course 
also  as  a  restraint  upon  the  pauper,  and  is  a  virtual  deprivation 
of  liberty  which  if  illegal  would  give  a  cause  of  action  for 
false  imprisonment.     The  power  has  so  long  been  exercised 
in  England  and  in  this  country,  that  the  established  practice 
has  been  held  equivalent  to   express  constitutional  sanction. 
Upon  this  ground  compulsorj-  removal  has  been  sustained  in 
Minnesota.-'     If  the  exercise  of  the  power  is  confined  to  those 
who  ajiply  for   or  accept  public   relief,  their  own   act  might 
wt'U  be  held  to  estop  them  from  insisting  upon  the  free  choice 
of  a  district,  which  they  do  not  simply  j^ise  as  a  place  of  resi- 
dence, but  upon  which  they  propose  to  inflict  themselves  as  a 
burden.     The  English  law,  however,  allowed  the  removal  of 
persons   likely   to   become   chargeable,   a   ])rovision   copied   in 
American  states  and  retained  to  the  present  day  in  Pennsyl- 
vania.^**      Such   a   power,   in   addition   to   being   liable   to   the 
grossest  abuse,-^  is  so  inconsistent  with  thi*  freedom  of  migra- 
tion in  pursuit  of  livelihood,  that  it  can  probably  not  be  main- 
tained under  our  constitutional  limitations.     The  earlier  law  of 
^lassachusetts  ai)plied  only  to  persons  likely  to  become  charge- 
able by  reason  of  age,  infirmity,  idleness,  or  dissoluteness.     At 
present  the  person  to  be  removed  nnist  have  become  actually 
chargeable,-'"  a  change  in  the  hiw  which  was  made  in  Hngland 
in    ITit').-'"      In    Maine   a    statuli'    reijiiiring   a    eoninion    carrier 
l)ringing  a  i)erson  not  being  ent  it  h'(|  to  a  selth'nient  in  thestat(\ 
into  the  state,  to   I'eniovc  him,   if  within   one  year  he   becomes 
chargeable  to   the   puhiiit   foi'  sui)i)or1,   \\as  hehl   to   be   uncon- 
stitutional as  being  conlrary  to  the  fed. 'i-al  power  to  I'eiiulate 
interstate  comniei-ce.      Hut    the    power  of  reiiioxal    IVoni    place 
to    i)iace    witiiin    the    slate    Avas    not    denied.      I|    ;i|)pears    that 
under  llie  statute  ;i    pel-son  at    the  time  of  l)eing  brouglit  into 

2'i  Ah    Io    IIu'    uri^iii;!!    |iiii°|iiis(!    nt'  (iil|iiii  Ovi^rmicr.s  v.    I';irks  Ovorseors, 

IhiH  Htatutn  Hcn   NicliolH    IliHiory   of  IIS    I'ji.   St.   «4. 

tlu!  KriKliHli   Poor  Ltiw,  p.  'JH1.  -u  Sec  ciiHO  last,  cited. 

-•'  Lovcll  V.  Hcctmck,  4.')  Minn.    IC.".,  •■"•  Hcviscil   Tiiiws,  <li.   HI,   §   .TJ. 

11    I..  U.  A.  r.r,7.  •••'  :?;")  (U-o.   lll,  di.   101.     S.>c  King 

2M;n«|pr  nn  act  of  Juru!  1.3,  l.S3(>.  v.  I'ariHh  of  Aiiii>tliill,  2  h  &  C.  847. 


§  271  RESTRAINTS  ON   PAUPERS.  259 

the  state  need  not  necessarily  have  been  a  pauper.  That  a 
state  may  exchule  from  its  territory  paupers  eominjj:  from 
other  states  or  from  abi'oad,  has  been  repeatedly  intimatfd, 
though  not  directly  decided,  by  the  Supreme  Court  of  the 
United  States,''-  but  the  conditions  nnder  which  a  person  may 
1)(^  regarded  and  treated  as  a  pauper,  have  not  been  deter- 
mined. The  exclusion  of  paupers  fi-om  immigration  into  the 
Ignited  States  by  act  of  Congress^*^  rests  upon  the  sovereign 
interuatioual  i)ower  of  the  United  States,  which  stands  above 
and  outside  of  the  police  power.  It  may  therefore  undoubtedly 
be  applied  to  persons  likely  to  become  chargeable. 

32  New  York  v.  iNfiln,  11  Pet.  101 ;      Phimloy  v.  Massachusetts,  1.55  U.  S. 
Passenger  Cases,  7   TTow.  282;   Hen-      461,   47S. 
(Ifrsoii  V.  New  York,  92  U.  S.  259;  ^^i  Marcli  3d,  1902. 


SECOND :    ECONO:\[IC  INTERESTS. 

PROTECTION  AGAINST  FRAUD  AND  OPPRESSION. 

PUBLIC  CONVENIENCE  AND  ADVANTAGE. 


CHAPTER    XI. 

PROTECTION  AGAINST  FRAUD. 

§  272.  Preventive  measures  against  fraud.— The  private  and 
the  criminal  law  as  well  as  the  police  power  undertake  to 
afford  protection  against  fraud.  They  deal,  however,  with 
fraudulent  practices  only  by  remedial  relief,  treating  a  trans- 
action as  void  or  setting  it  aside,  giving  a  claim  for  damages 
or  inflicting  a  penalty  after  the  fraud  has  been  committed. 
In  either  case  the  element  of  fraudulent  intent  is  essential. 
The  police  power  attempts  to  give  an  ampler  protection  both 
by  adopting  precautionary  measures  and  by  forbidding  cer- 
tain practices  irrespective  of  an  actual  intent  to  defraud. 
It  does  not  in  llic  first  instance  punish  fraud,  but  ]n-escribes 
regulations  and  punishes  their  violation.  The  intei'ventiou 
of  the  law  proceeds  upon  the  theory  that  every  one  who  in- 
vites the  confidence  of  the  public  may  be  compelled  to  submit 
to  such  regulations  as  will  guard  the  public  as  far  as  i)ossibIe 
against  misapprehension.  Where  the  confidence  of  the  public 
is  invited  to  an  exceptional  degree,  the  regulations  may  be 
made  specially  stringent,  on  the  ground  tliat  the  business 
is  affected  witli  a  public  interest,  so  in  hanking  and  insurance. 
A  gi'<;it  lirld  for  statutory  protection  against  fraud  is  also 
(>tVii-i'd  in  legislation  regarding  the  organisation  of  ('ori)ora- 
tions;  but  the  legislative  control  over  corporations  and  in- 
corporation is  based  on  peculiar  j)rinci|)les,  different  from 
those  governing  the  police  power  over  individuals,  and  will 
be   exaitiiiH'd    sepjiratcly. 

'i'lie  (ield  of  legislation  here  lo  Ite  examined  nia\  l)e  divided 
conveniently  as  follows: 

,\.     Weiglits,    measures   and    i)ackages. 

!'>.       Inspection    laws. 

C.     Substitutes,    imilations,   adnlterations. 

I>       Kornis  of  business   lialde   In   abuse. 

iv      l-'idi  |it\-   of  jigcnts,   depositaries,   and    ti'ustees. 

260 


273  WEIGHTS  AND  MEASURES. 


WEIGHTS,  MEASURES  AND  PACKAGES.     §§  27.3-27.'i. 


261 


§273.  The  earliest  legislation  for  the  prevention  of  fraud 
relates  to  weights  and  measures.  It  goes  back  to  Anglo-Saxon 
times,  and  forms  part  of  Magna  Carta.'  The  constitution  of 
the  United  States  provides  for  uniformity  of  wcigiits  and 
measures  by  giving  Congress  power  to  fix  their  standard  ;- 
but  Congress  has  enacted  no  compulsory  legislation  in  execu- 
tion of  this  power.  It  merely  has  passed  an  act  authorising 
the  use  of  the  metric  system  ;3  and  the  federal  government 
supplies  the  several  states  with  certain  standard  weights  antl 
measures  as  a  matter  of  favor  and  accommodation  imder  a 
resolution  of  Congress  of  June  14,  1836.-*  Until  superseded 
by  act  of  Congress  the  regulation  of  weights  and  measures 
therefore  devolves  upon  the  states,  and  is  provided  for  jjy 
state  legislation.^ 

§  274.  Determination  and  verification  of  standards.— The 
statutes  of  the  states  generally  lix  standards  to  which  the 
standards  of  like  denomination  used  in  trade  must,  under  pen- 
alty, conform.*'  There  are  otBcial  sealers,  who,  upon  recpiest,  or 
irrespective  of  request,  try  and  mark  weights  and  measures, 
or  test  them  upon  complaint.'^ 

Statutes  not  unfrequently  prescribe  that  certain  common 
forms  of  package,  etc.,  shall  contain  a  fixed  amount  by  weight 
and  measure,  and  also  that  the  enclosure  itself  shall  not  con- 
tain more  than  a  prescribed  weight  and  content,  so  e.  g.  that 
no  baled  hay  shall  be  offered  for  sale  with  more  than  10  per 
cent  of  the  weight  thereof  in  wood  to  the  bale,^  or  that 
the  weight  of  the  package  be  stamped  thereon."  Such  pro- 
visions are  found  with  regard  to  fish,  fruit,  hoops  and  staves, 

iCap.   25;    una  mensura   viui   per  N.   Y.    Penal   Coile,    §    580-583;    111. 

totum  regnum  nostrum,  etc.  ri.  St.  ch.  147,  Sec.  14. 

2  18    5.  ''  Mass.  Rev.  L.  ch.  62,  Sec.  21,  37, 

3  Act  July  28,  1866;  Rev.  Stat.  Chic.  Rev.  Code,  Sec.  2018;  Smith 
Sec.  3569,  3570.  v    Arnold,  106  Mass.  269;  Bisbee  v. 

4V.  Stat,  at  L.  p.   133.     See   111.  McAllen,    39    Minn.    143;    People   v. 

Rev.  Stat.  ch.  147,  Sec.  1.  Rochester,  45  Ilun  (N.  Y.)   102. 

5  Mass.  Rev.  L.  ch.  62,  New  York  »  Laws   of   New   Jersey,    1890,   ch. 

Domestic    Commerce    Law,    Art.    1;  236. 

111.  Rev.  St.  ch.  147.  "Chic.  Rev.  ('...ie,  Sec.  1240. 

cMass.   Rev.   L.   ch.   62,   Sec.   31; 


262  PROTECTION  AGAINST  ERAUD.  §  275 

etc.^*'    They  are  justified  by  the  danger  of  fraud  in  the  absence 
of  uniformity. 

Similar  in  character  are  the  laws  which  require  the  weigh- 
ing or  measuring  of  articles  by  public  authority/^  or  the  keep- 
ing of  scales  to  enable  the  purchaser  to  verify  his  purchase.^ 2 
The  common  provision  that  mine  companies  paying  the  miners 
by  weight  must  keep  scales  and  must  allow  their  employees 
to  have  a  weigher  of  their  own,  is  analogous.  In  England, 
every  clerk  or  toll  collector  of  any  public  market  may  at  all 
reasonable  times  weigh  or  measure  all  goods  sold,  offered 
or  exposed  for  sale  in  such  market.^  ^  For  the  better  enforce- 
ment of  this  control  certain  classes  of  goods  are  even  required 
to  be  sold  at  a  place  set  apart  for  that  purpose.^^  Regula- 
tions of  this  character  have  been  upheld  in  several  cases.' •'• 
They  apply  only  to  dealing  by  weight  or  measure,  and  do  not 
necessarily  prohibit  other  modes  of  dealing.^ ^ 

§  275.  Compelling  certain  modes  of  dealing.— In  a  number 
of  cases  statutes  prescribe  that  certain  commodities  shall  be 
sold  by  a  given  weight  or  measure  or  in  a  certain  package, 
and  not  otherwise ;  as,  that  bread  shall  be  sold  in  loaves  of  two 
pounds  or  in  half,  three  quarter  or  quarter  loaves;''  that  coal 
when  sold  in  quantities  of  500  pounds  or  more,  except  by  the 
cargo,  shall  be  sold  by  weight;''^  that  milk  shall  be  sold  in 
wine  measures;^"  or  that  in  all  contracts  for  the  sale  and 
delivery  of  oats  and  meal,  the  same  shall  be  bargained  for 
and  sold  by  the  bushel. ^'^  Such  laws  have  been  sustained 
without  nnich  (piestioning.  But  the  requirement  that  coal 
miners  shall  l)e  paid  by  weight  has  been  declared  unconstitu- 

10  MasHachusetts    Kev.    Laws,    ch.  i^  JMassacliusotis    J\ov.     Laws,    ch. 

56,  57.  57,  See.  3;   Mobile  v.  Yiiillc,  3  Ala. 

"  I'ittHburp,     etc.,     Coal     Co.     v.  137;  BuiTalo  v.  Collins,  etc.,  Co.,  57 

Louisiana,   15(5  TI.  S.  .500.  N.    Y.   Siii)|)l.   347;    IVoplo   v.    Waj,'- 

>■- Massacliu.setts    Kcv.     Laws,    ch.  oner,    8(5    Midi.    5!)4 ;    Ciiica;,^)    Mo\. 

r/7,  Sec.  44-40,  as  to  ice  wagons.  (.'orlo,   Sec.   1H7. 

13  41  and  42  Vict.  ch.  49,  Sec.  64.  i«Libhcy  v.  Downey,  5  Allen,  299. 

iWhic.   K<'v.  To.Io,   See.    Ili45.  i"  Mill.r   v.    Posl,    1    Alien,  434. 

"■•  Htokcs  &  (lilhcrt  v.  Coritoration  -'•  Laton  v.   Kcj^.m,   114  Mass.  433, 

of    Now    York,    14    Won*!.    87,    1835;  1874.      I'Vderal     legislation    contains 

iiit(!n(lant    v.    Sorrcli,    I    .limes    Law  analogous     j)rovisions     (dr     I  lie     cii- 

(N.  ('.)   49.   1853;   (laincs  v.  (loalcs,  torccmont    of    llic    internal     revcnne 

51    MisH.    335;    Yates   v.    ^Ti^v•nlkee,  laws.      See      I'VIscnlicM      v.      United 

12  Wis.  073.  Stales,    180   U.   S.    126. 

1"  Kichmond  v.   I'oss,  77   Me.  590. 


§  276  INSPECTION    LAWS.  ._»,-;;j 

tional  in  Illinois,  the  court  holdinf>-  that  the  General  Assembly 
has  no  power  to  deny  to  persons  in  one  kind  (»f  Ijusiness  the 
privilege  to  contract  for  labor  and  to  sell  their  products  with- 
out regard  to  weight,  while  allowing  this  privilege  to  persons 
in  all  other  kinds  of  business.-i  Tpon  this  principle  most  of 
the  laws  above  mentioned  would  be  invalid. 

INSPECTION  LAWS.     §§276-278. 

§  276.  Scope  of  legislation.  — In  the  earlier  periods  of  their 
history  a  considerable  number  of  states  enacted  so-called  in- 
spection laws,  which  to  some  extent  are  found  on  the  statute 
books  to  the  present  day.  A  note  in  the  case  of  Turner  v. 
I\Iaryland22  gives  a  long  list  of  such  statutes.  These  acts 
generally  applied  to  a  limited  number  of  articles,  those  in 
New  York  being:  flour  and  meal,  beef  and  pork,  pot  and  pearl 
ashes,  fish,  fish  and  liver  oil,  lumber,  staves  or  heading,  flax 
seed,  sole  leather,  hoops,  distilled  spirits,  and  leaf  tobacco. 
They  sometimes  contained  provisions  regarding  the  treatment 
of  the  commodity  to  keep  it  from  spoiling;  they  very  often 
specified  different  grades  of  quality,  each  to  be  known  by  a 
certain  designation  and  to  be  branded  on  the  goods  or  their 
package;  they  always  prescribed  the  manner  of  packing  the 
goods  (material  of  packing  and  size  of  package),  and  required 
that  goods  or  packages  or  both  before  being  marketed  should 
be  weighed,  or  weighed  and  inspected,  and  marked  by  official 
inspectors,  who  were  entitled  to  a  fee  for  their  services. 

The  object  of  the  inspection  laws,  as  stated  in  an  early  New 
York  case,  is  to  protect  the  community,  so  far  as  they  apply 
to  domestic  sales,  from  frauds  and  impositions;  and  in  relation 
to  articles  designed  for  exportation,  to  preserve  the  character 
and  reputation  of  the  state  in  foreign  markets.^^  With  re- 
gard to  a  number  of  articles  the  inspection  laws  confined 
themselves  to  packages  intended  for  export ;  in  other  cases 
they  applied  to  goods  intended  for  the  domestic  market  as 
well;  and  in  a  few  eases  they  applied  only  to  articles  coming 
from  other  states. 

§277.     Validity  under  federal  constitution.- '-The  United 

21  Millett  V.   People,   117   111.   294.  23  Clintsman  v.  Northrup,  8  Cow. 

So  Opinion  of  Justices,   21   Col.  27,  (N.  Y.)  46. 

39  Pac.  431.  2*  See,  also,  §  75. 

22 107  U.  S.  38. 


2(34  PROTECTION  AGAINST  FEAUD,  §  277 

States  Supreme  Court  in  a  reeout  case  has  said  "Inspection 
laws  are  not  in  themselves  regulations  of  commerce ; '  '^^  but 
this  can  only  mean  that  it  is  not  necessarily  their  sole  purpose 
to  control  foreign  or  interstate  commerce ;  that  they  do  affect 
and  therefore  regulate  such  commerce  where  they  apply  to 
imports  and  exports  cannot  he  denied. 

The  federal  constitution  has,  however,  made  express  i)ro- 
vision  for  them,-^  by  forbidding  the  states  without  the  consent 
of  Congress  to  lay  any  imposts  or  duties  on  imports  or  exports 
except  what  may  be  absolutely  necessary  for  executing  their 
inspection  laws,  all  such  laws  to  he  subject  to  the  revision  and 
control  of  Congress. 

It  has  been  said  that  the  term  imports  and  exports  relates 
only  to  foreign  countries,-"  but  the  case  in  Avhich  this  state- 
ment was  made  ui)held  an  in.- paction  law  operating  upon 
products  of  other  states. 

No  case  appears  to  have  arisen  under  any  statute,  nor  does 
any  statute  seem  to  exist,  recjuiring  inspection  before  sending 
goods  to  another  state.  But  the  validity  ol'  inspection  laws 
ai)i>lying  to  exports  to  foreign  countries  has  Ixhmi  t'lilly  recog- 
nised by  the  Supreme  Court,-*^  and  it  has  been  held  that  the 
inspection  need  not  extend  to  the  goods  themselves,  but 
that  it  is  sufficient  if  tlie  package  is  Aveighed  and  its  brands 
are  inspected.  The  identification  of  the  jirodneer  ]\v  mai'l<s 
clearly  tends  toAvard  good  (lualit.v. 

In  so  iiii-  as  inspection  lawj^  fipp'.^'  «'xchisively  1o  goods  com- 
ing from  otliiT  states,  tlii'\-  li;ive  been  held  to  l)e  unconsti- 
tiit i()nal.-"'  in  the  decision  ol'  the  case  last  cited  consi(lei"al)k'! 
donht  was  cast  npon  the  viilidity  ol"  nil  inspection  laws  :i|)|)ly- 
in;/  to  inijtoi'ls.  I5nt  in  r.it.ipsco  (I'lumo  (\».  v.  l-Joard  of 
Agricidturc.-'-"  the  Sn|)rcni('  ('onrt  upheld  ;iii  act  foi-  the  in- 
spection ol'  t'ert  ilisers  which  applied  to  ini|>orls  from  othei- 
states  without  discriniiiial  ing  against  theui.  since  it  covered 
fertilisers  niannl'actni'ed  in  the  state  ;is  well."-'  In  this  c.ise 
the  general  pi-inci|»lc  w;is  rec(»gnise(|  lli;it  the  sl;ites  may  in- 
Hpoct  for  the  pfcvcntion  of  rc-iiid  nnd  tli;it   this  powei-  |)revails 

-•'  I'al.ipscd  t\i'.  (  ..ni[iiiiiy  v.  Hd.-irii  -"  V(ii;flil   v.  Wri^lil,    111    U.  S.  OL'. 

of  AKrir-iihiiri',  171   I'.  K  .".tr..  ."..%}.  .'I'liTi    |l.  S.  :ur,. 

an  Art.   f,  »ioc.  10,  No.  L'.  "i  Ah    to    Soiitli    ('.•in,liii;i    I)is|)(.MiH- 

■1  171  V.  S.  3r)(>.  jiry  Ijiw  hoo  mpra,  Hw.  1233. 

2»TiiriifT  V.   Marylaii'l.    107   IT.  H. 
38. 


§  278  INSPECTIOX  LAWS.  'jfio 

over  the  freedom  of  commerce,  subject  to  the  power  of  Con- 
gress to  annul  such  laws,  especially  on  account  of  the  exces- 
siveness  of  inspection  charges. 

§278.  Restrictions  under  state  constitutions.  — The  license 
under  the  federal  constitution  does  not,  of  course,  remove  any 
objection  to  the  enactment  of  inspection  laws  that  may  arise 
under  state  constitutions. 

The  constitution  of  New  York  of  1846  abolished  and  for- 
bade the  future  creation  of  all  offices  for  the  weighing,  gaug- 
ing, measuring,  culling  or  inspecting  of  any  merchandise, 
produce,  manufacture  or  commodity,  saving  offices  for  the  pro- 
tection of  the  public  health,  for  the  supplying  of  correct 
standards  of  weights  and  measures,  and  for  the  protection 
of  the  state  in  its  revenues  and  purchases.-*- 

By  this  provision  the  old  inspection  laws  were  al)rogated. 
They  were  felt  to  be  oppressive  because  inspection  was  made 
a  condition  precedent  for  the  marketing  of  the  commodity  to 
which  it  applied,  and  being  accompanied  by  the  exaction  of 
a  fee,  operated  virtually  as  a  tax.  The  remedy  has,  however, 
gone  further  than  the  evil,  and  New  York  appears  to  have 
surrendered  the  power  to  inspect  for  the  prevention  of  fraud 
altogether.  So  New  York  could  probably  not  enact  such 
legislation  as  exists  in  Illinois  for  the  inspection  of  grain  in 
warehouses,  and  which  in  Illinois  has  been  held  to  be  con- 
stitutional,^-"^  and  the  inspection  provided  for  in  New  York 
under  the  dairy  laws  of  that  state,  though  undoubtedly  in- 
tended in  part  at  least  to  prevent  the  fraudulent  substitution 
of  oleomargarine  for  butter,  can  be  upheld  only  as  a  sanitary 
measure. 

Evidently  the  older  New  York  Inws  were  intended  not 
merely  to  prevent  the  perpetration  of  frauds,  bul  ;ilso  to  en- 
force a  certain  standard  of  quality,  i.  e.  to  prevent  inferiiu- 
grades  of  manufacture.  The  two  objects  are  by  no  means 
identical.  New  York  might  have  abandoned  the  policy  of 
enforcing  quality  w^ithout  sacrificing  the  power  to  inspect  for 
the  detection  of  fraud;  by  abolishing  inspection  it  has  not 
even  abrogated  all  legislation  for  the  secui-ing  of  quality,  and 
the   present   revision   of   the   statutes    retains   the    provisions 

32  Art.  V,  Sec.  8.  ^3  People  v.  Uarpor,  01  111.  357. 


2(56  PKOTECTION  AGAINST  FKAUD.  §  279 

regarding  the  making  of  barrels  for  packing  beef  and  pork, 
which  are  independent  of  powers  of  inspection. ^^ 

SUBSTITUTES,  IMITATIONS,  ADULTERATIONS.     §§279-286. 

§  279.  Poor  quality  without  deception.— Poor  quality  which 
is  visible  to  the  eye  so  that  there  is  no  danger  of  deception, 
may  be  dealt  with  in  the  interest  of  public  health  and  safety, 
so  in  the  case  of  rotten  fruit,  or  putrid  meat.  Where  the 
injurious  quality  is  not  visible,  the  protection  of  health  con- 
curs with  the  prevention  of  fraud,  and  increased  penalties 
are  sometimes  provided  for  selling  unwholesome  provisions 
without  making  their  condition  knoAvn  to  the  buyer. ^^  Where 
visibly  poor  quality  affects  neither  health  nor  safety  the 
police  power  does  not  interfere. 

The  trade  regulations  of  the  mediaeval  guilds  claimed  to 
have  for  their  principal  object  the  maintenance  and  improve- 
ment of  the  quality  of  the  goods  manufactured,  and  under  the 
Tudors  a  very  large  amount  of  legislation  was  enacted  for  the 
li]<f  [itiiposc,  oi'lcii  entitled  acts  for  the  ''true  making"  of 
specilied  merchandise.  These  statutes  regulated  the  making  of 
worsted,  dyed  wool,  cloth,  linen,  featherbeds,  leather,  wax, 
tiles,  malt,  oil,  etc.,  and  the  work  of  silk  throwsters,  upholster- 
ers, plasterers,  painters,  etc.  The  colonial  legislation  of  Mas- 
sachusetts regulated  in  similar  manner  the  trades  of  bakers, 
brewers,  coopers,  and  acts  of  like  import  are  found  in  colonial 
New  ^'<)I•k,  but  on  llic  whole  this  legislation  has  been  aban- 
doned. 

v;  280.  Deceptive  practices— Adulteration.  — The  public  is 
apt  to  he  misled  where  inrerioi-  and  superior  articles  naturally 
look  alike,  and  where  an  inferior  article  is  so  treated  as  to 
l(»ok  like  the  sui)iTiiir  .-irtiele;  in  the  hilter  case  we  speak  ol" 
iinitatioii.  Ailnlter.it  ion  is  ;i  term  jipplied  lo  jirtieles  of  coii- 
sniiiption  n"oo(|  ;iti(|  drugs)  and  nie.-ins  properlv  ihc  adniixl  ui-e 
ol"  inlerittf  or  othei-  1h;in  the  usiiid  or  legally  allo\\<'t|  ingi-edi- 
ents,  but  is  used  in  slatules  so  as  lo  include  substitutes  and 
imitations,  and  sometimes  even  naturallv  had  (|iia  Ml  \  .'•'''  The 
dennition  iriven  hy  the  laws  of  Massaehusetls  has  in  snhstance 

•■<♦  l)(im««Htic   ConinuTfo   liiiw,   §   iid-  :"■•  MiiHHUclmHottH     l{<'v.     IjIiwh,     cli. 

\f2;     iiIhii     uh     Id     (lour     .•iml     meal,      .'56,  Sfc  7.3. 
Article  V  (if  HUiiic  law.  3"  Statr?   v.    Siiiylli,    II     I;.    I.    100, 


§  281  ADULTERATION.  ogy 

been  adopted  in  many  other  states,-"^'  and  is  tlicroforo  {;iven 
here  in  full,  in  so  far  as  it  relates  to  food  :-^^ 

"Food  shall  be  deemed  to  be  adulterated:  1.  1 1  any  sub- 
stance has  been  mixed  with  it  so  as  to  reduce,  depreciate  or 
injuriously  affect  its  quality,  strength  or  purity.  2.  If  an 
inferior  or  cheaper  substance  has  been  substituted  for  it  wholly 
or  in  part.  3.  If  any  valuable  or  necessary  constituents  or 
ingredients  have  been  wholly  or  in  part  taken  from  it.  4.  If 
it  is  in  imitation  of  or  is  sold  under  the  name  of  another  ar- 
ticle. 5.  If  it  consists  wholly  or  in  part  of  a  diseased,  decom- 
posed, putrid,  tainted  or  rotten  animal  or  vegetable  substance 
or  article,  whether  manufactured  or  not,  or  in  case  of  milk,  if 
it  is  produced  by  a  diseased  animal.  6.  If  it  is  colored,  coated, 
polished  or  powdered  in  such  a  manner  as  to  conceal  its  dam- 
aged or  inferior  condition,  or  if  by  any  means  it  is  made  to 
appear  better  or  of  greater  value  than  it  is.  7.  If  it  contains 
any  added  substance  or  ingredient  which  is  poisonous  or  injuri- 
ous to  health.  8.  If  it  contains  any  added  antiseptic  or  pre- 
servative substance,  except  common  table  salt,  saltpetre,  cane 
sug'ar,  alcohol,  vinegar,  spices,  or,  in  smoked  food,  the  natui-al 
products  of  the  smoking  process;  but  the  provisions  of  this 
definition  shall  not  apply  to  any  such  article  if  it  bears  a  label 
on  which  the  presence  and  the  percentage  of  every  such  anti- 
septic or  preservative  substance  are  clearly  indicated,  nor 
shall  it  apply  to  such  portions  of  suitable  preservative  sub- 
stances as  are  used  as  a  surface  application  for  preserving 
dried  fish  or  meat,  or  as  exist  in  animal  or  vegetable  tissues 
as  a  natural  component  thereof,  but  it  shall  apply  to  additional 
quantities.  *  *  *  The  provisions  of  this  and  the  two  pre- 
ceding sections  relative  to  food  shall  not  apply  to  mixtures 
or  compounds  not  injurious  to  health  and  which  are  recognised 
as  ordinary  articles  or  ingredients  of  articles  of  food,  if  every 
package  sold  or  offered  for  sale  is  distinctly  labelled  as  a  mix- 
ture or  compound  with  the  name  and  per  cent  of  each  ingredi- 
ent therein." 

§  281.     Commodities  to  which  legislation  applies ;  gold  and 

51    Am.   Rep.   .344.      Coloring   which  •"■  Chapin,  p.'325,  326;  N.  Y.  Gen. 

does   not   deteriorate   or   conceal   de-  Ti.  eh.  25,  Sec.  41;   111.  Act  Apl.  24, 

terioration  held  not  to  be  adultera-  1899,  §  14. 

tion.      People   v.    Jennings    (Mich.),  -s  Mass.  Rev.  Laws,  ch.  75,  §  18. 
94  N.  W.  216. 


268  PKOTECTION  AGAINST  FRAUD.  §  282 

silver.— Leirislative  provisions  for  the  prevention  of  deceptive 
practices  in  the  qualitj'  of  articles  are  in  the  main  confined  to 
foodstuffs,  drugs,  confectionery,  distilled  and  refined  products, 
and  fertilisers. 

The  working  of  gold  and  silver  has  in  Europe  for  a  long 
time  been  subject  to  similar  legislation.  We  find  in  England 
a  number  of  .statutes  relating  to  the  allo^^  of  gold  and  silver, 
the  quality  and  marks  of  silver  work,  etc.^^  The  possible 
methods  of  controlling  the  qualitj'^  of  gold  and  silver  ware 
are  either  to  require  it  to  be  proved  and  stamped  by  public 
authority;  or  to  require  it  to  be  marked  according  to  its 
quality  by  the  manufacturer;  or  to  forbid  the  stamping  of  in- 
ferior goods  as  gold  and  silver.  Even  where  the  state  does 
not  require  such  measures,  it  may  provide  for  public  marking 
at  the  request  of  the  manufacturer.  England  and  France  re- 
quire public  stamping,  while  Germany  requires  the  manufac- 
turer's stamp  indicating  the  grade  of  fineness.  In  America  no 
legislative  provisions  existed  in  this  matter  until  recently ,•*" 
but  statutes  have  been  enacted  in  Massachusetts  and  New  York 
in  1894,  in  Pennsylvania  in  1897  and  in  Illinois  in  1901,  re- 
( I  Hiring  gold  and  silver  marked  sterling  to  come  up  to  a  pre- 
scribrd  standard. 

^  282.  Oleomarg-arine  legislation.— The  operation  of  the 
police  power  upon  food  proilucts,  where  it  is  intended  to  pre- 
vent deception,  is  best  illustrated  by  the  legislation  regarding 
oleomargarine,  Avhich  exists  in  most  American  states,  and  in 
a  number  of  foreign  countries.**^  Oleomargarine  is  produced 
from  ;iniiii;il  lats  or  vegetable  oils  ;iiid  eontnins  the  same  in- 
gredients as  dairy  butter,  hut  a  smaller  ])i'()portion  ot"  butter- 
irie.  and  is  liiei-i  fdrc  inferior  in  llavor  to  the  best  butteT, 
and  dilVers  fi-oni  daii-y  butter  in  coloi-.  It  is  wholesome  and 
nutritious  and  rhmpei-  than  dairy  butter.  The  hostility  of 
the  dairy  interests  has  led  to  a  eonsideralile  aiiiounl  of  ri'- 
strietive  legislation,  whi(di  was  i'oiiiiei-ly  sought  t(»  lie  justified 

3U  29  Ivl.  IN,  eh.  '20,  i;i.')4;  'M  K>\.  "f  priiii-  in   flic  firm  lliiit  tlio  prece- 

IIF,    ell.    7,    i:?(;3;    .')    H.    IV.    «li.    i:'.,  ilcnt    lias   hccii    sumcicnt    to   kcop   \ip 

1104;    IH   Kliz.  eh.  .',,   LlMl.  in      Aiiicrica      a      slaiidanl      that      an 

•"  N.    Y.     Wf'fkly     PoHt,     Tell.     1'-',  ridicial    'iiall    mark'    was    rc(|iiirc(|    to 

H»(('J.     ''Mr.    Tinrnny    w»s    llir    (irsf  nifdrfc  in  llic  indllicr  <<Min(ry." 
man    in    (IiIh    I'onnfry    to    a<lo|il     tin'  '•  I'raiKc,        <!iTtnaiiy,       Dcnni.ark, 

I'.nKlii^li    st<•rlill^;    Hl.'in<i:iril     of    .'.)'irt  cti-. 
lincnt'SM.     It  huH  always  1)f<'n  a  jioint 


§  283  OLEOMARGAEINE  LEGISLATION.  2,,;, 

upon  the  ground  that  the  manufacture  of  ok^omargarine  lent 
itself  easily,  and  without  the  possibility  of  effective  control, 
to  unwholesome  adulteration,  and  is  now  generally  based  upon 
the  plea  of  protection  against  fraud.  We  may  distinguish  the 
following  forms  of  legislative  restraint:  prohibiting  the  manu- 
facture, out  of  any  oleaginous  substance  other  than  that  pro- 
duced from  milk  or  cream,  of  any  article  designed  to  take  the 
place  of  cheese  or  butter;— prohi])iting  the  manufacture  from 
such  substance  of  any  article  in  imitation  or  semblance  of  but- 
ter;—prohibiting  the  addition  of  any  coloring  matter  to  make 
oleomargarine  resemble  butter ;— requiring  the  labeling  of  oleo- 
margarine so  as  to  indicate  its  true  character,  with  additional 
provisions  as  to  forms  of  package,  place  of  sale,  etc.;— and 
requiring  oleomargarine  to  be  distinctively  and  artificially 
colored,  or  to  be  designated  by  some  prejudicial  name,  as 
"adulterated  butter."  Federal  legislation  has,  moreover,  been 
enacted  in  the  United  States  for  the  taxation  of  oleomargarine, 
a  form  of  restraint  with  which  we  are  not  at  present  con- 
cerned. 

§283.  Absolute  prohibition.'*-— The  absolute  prohibition  of 
the  manufacture  and  sale  of  oleomargarine  was  sustained  as 
a  legitimate  exercise  of  the  police  power  in  Pennsylvania"*^ 
and  by  the  Federal  Supreme  Court,  on  the  ground  that  it  is 
for  the  legislature  to  determine  ''whether  the  manufacture  of 
oleomargarine  is  or  may  be  conducted  in  such  a  manner,  or 
with  such  skill  and  secrecy,  as  to  baffle  ordinary  inspection,  or 
whether  it  involves  such  danger  to  the  public  health  as  to  re- 
quire, for  the  protection  of  the  people,  the  entire  suppression 
of  the  business  rather  than  its  regulation  in  such  manner  as 
to  permit  the  manufacture  and  sale  of  articles  of  that  class 
that  do  not  contain  noxious  ingredients."  The  same  view  has 
been  taken  in  IMinnesota,-*"*  and  in  :\Iarylaud.-*^  The  Court  of 
Appeals  of  New  York,  however,  declared  a  similar  prohibitory 
statute  unconstitutional,  it  appearing  that  the  article  was 
wholesome  and  nutritious,  and  that  fraudulent  imitations  of 

42  See,  also    §62,540.  -J^  Butler    v.    Chainbors,    M    Minn. 

43  Powell    V.    Commonwealth,    114     G9. 

Pa.    State,    265;    confirmed    by    the         4-- Wright    v.    State,    88    Md.    436, 
Supreme  Court  of  the  United  States     41  Atl.  7.>5,> 
ill    Powell   V,    Pennsylvania,    127    U. 
S.  678. 


270  PEOTECTION  AGAINST  FRAUD.  §  284 

butter  were  covered  by  another  act,  so  that  there  remained 
as  the  sole  reason  for  the  prohibition  of  the  industry  that  it 
competed  with  another  industry  and  reduced  the  price  of  an 
article  of  food.-*^  And  the  Supreme  Court  of  the  United 
States  held  in  a  later  case  that  while  the  legislative  policj'- 
was  conclusive  as  to  domestic  manufacture  and  sale,  it  could 
not  extend  to  interstate  commerce,  and  that  the  absolute  pro- 
hibition of  the  Pennsylvania  statute  could  not  prevent  the 
importation  of  pure  oleomargarine  into  the  state  or  its  sale 
there  in  original  packages.^" 

The  acts  of  Pennsylvania  and  [Maryland  forbidding  the  man- 
ufacture of  substitutes  for  butter  were  repealed  in  1899  and 
1900  respectively,  and  this  legislation  is  no  longer  to  be  found 
in  American  statute  books. 

§284.  Prohibition  of  imitation.— The  prohibition  of  the 
manufacture  of  oleomargarine  in  imitation  and  semblance  of 
yellow  butter,  by  addition  of  ingredients  changing  its  natural 
color,  is  found  in  many  states  and  has  been  generally  upheld.'^''' 
This  (jualified  prohibition  is  recognised  as  valid  by  the  Supreme 
Court  of  the  United  States  even  as  to  oleomargarine  imported 
from  otlier  states  and  sold  in  original  packages,  on  the  ground 
lliat  the  object  of  the  statute  is  only  to  sujipress  false  pre- 
ten.ses,  and  that  the  freedom  of  connm'rce  among  the  states 
tloes  not  demand  a  recognition  of  the  right  to  practice  a  de- 
ception upon  the  public  in  the  sale  of  any  articles,  even  those 
that  may  have  ])ecome  the  subject  of  tra(h'  in  tlili'erent  parts 
of  1h<'  count  i-y.''' 

••"r.MipIc  V.  .\laix,  Slit  N.  Y.  :577.  A.l<liii>rton,    77    Mo.    110;    Ex    parte 

<7  SchnIIenberfi;('r   v.    Pennsylvania,  IMiiniloy,  156  Mass.  236;   MeCann  v. 

171   U.  S.   1.    The  ofTect  of  lliis  <lc-  Commonwealtli,  198  Pa.  509;  Pelia  v. 

cifiion   has   lu-cn    nullifiod   liy   the  ait  State    (Xch.),   9.'J   N.  W.   155.      Now 

of  <  dnjjrt'SH  of   May  9,    19012,   wliicli  ^'oik  l>a\vs,  19012,  cli.  .'iS.l,  a^ain  jiro- 

^ul).j«v•tH  oleonuirg.'irine   iijxtn    arrival  liiliits    llir    iiiaiml'acluri'   ami    salo   of 

in  Ji  Htato  tr)  tlio  laws  of  tliat  state  oieoinar^ariiic  or  any   pnxhict    from 

piiHHCfl    in    tlio  cxercisn   of   its   police  jiiiinial    fat    or   vegetable   oil   in    iiiii 

powers;    Init    tlie    decision    ceaseil    to  latinii   or  seiiililaiice  of  hiilter.      'I'lie 

be     of      jiulicial      importance     when  Htal)ite    seems    capaMe    df    liejn;^    iii- 

I'pnnMylvunin    repealeil    tlie    pmliilii  terpreted     as     absolute     proliiliilidii ; 

lory  oU•omn^^;;l^ine   leyislation.  bnt  sticli  etVect   would  be  contrary  to 

♦"People  V.   Arensberpf,   10,''i   N.   V.  t he  judt;tueiit    in    People  v.   Marx. 
123;     .McAlliHter    v.    Htnte,    72    Md.  •"  IMnndey    v.    MMssudmscttH,    1.55 

390;     Htate     ex     rel.     Waterbury     v.  I      S.    ICl. 
Vewfon,  50   N.  J.   L.   534;   Htatc   v. 


^  285  EEGULATION  AND  PROHIBITION.  071 

The  validity  of  provisions  requiring  oleomargcarine  to  be 
distinctly  labeled  as  such,  to  be  sold  in  prescribed  forms  of 
packages,  or  in  rooms  separate  from  those  in  which  butter 
is  sold,  or  that  the  purchaser  be  expressly  informed  of  the 
nature  of  the  article,  is,  in  principle,  not  questioned.'^'*  Such 
provisions,  which  do  not  forbid  imitation,  are  found  in  a  num- 
ber of  states.  The  requirement  of  some  laws  that  oleomar- 
garine be  given  a  color  or  a  name  calculated  to  prejudice 
l)urchasers  and  to  make  the  article  odious,  is  evidently  of  a 
different  character;  it  has  been  upheld  in  several  cases  as  an 
exercise  of  legislative  discretion  beyond  the  control  of  the 
courts,  but  the  Supreme  Court  of  the  United  States  treats 
prejudicial  requirements  as  virtual  prohibition,  and  holds 
them  to  be  invalid  as  far  as  interstate  commerce  is  con- 
cerned.^^ 

§  285.     Principles  governing  regulation  and  prohibition.— 

The  constitutional  principles '  regarding  regulation  and  pro- 
hibition have  been  fully  discussed  before,  and  may  be  sum- 
marised as  follows : 

1.  Provisions  requiring  labeling  and  marking  are  valid, 
provided  their  primary  purpose  be  not  to  make  a  useful  article 
odious. 

2.  The  legislature  may  fix  the  standard  of  an  article  of 
commerce  known  by  a  certain  name,  and  forbid  the  selling  of 
an  inferior  article  by  that  name. 

3.  The  legislature  may  forbid  imitations,  subject  probably 
to  this  modification,  that  where  imitation  products  have  come 
to  be  recognised  as  legitimate  substitutes,  the  power  of  pro- 
hibition should  not  be  exercised  to  the  destruction  of  valuable 
industries. 

4.  The  legislature  should  not,  and  probably  may  not,  pro- 
hibit the  use  of  harmless  ingredients,  which  increase  the  in- 
1  rinsic  value  and  usefulness  of  the  article,  especially  of  antisep- 
tics and  preservatives. 

5.  The  legislature  should  not,  and  probably  may  not,  pro- 
hibit harmless  and  useful  substitutes  and  compounds. 

so  State  ex  rel.  Bayles  v.  Newton,  W.  688;   Collins  v.  New  Hampshire, 

50  N.  J.  L.  549.  171    U.   S.   30;    see   §   49,   58  aupra. 

SI  State  V.  Marshall,  64  N.H.  549;  Since  the  act  of  May  9,  1902,  the 

State  V.   Myers,  42  W.  Va.   822,   35  state     legislation     would     again     b.« 

L.  R.  A.  844;   State  ex  rel.  Weide-  valid, 
man  v.  Horgan,  55  Minn.  183,  56  N. 


272  PEOTECTIOX  AGAINST  FEAUD.  §  286 

While  statutory  provisions  contrary  to  the  two  principles 
last  stated  have  in  some  instances  been  sustained  by  the  courts, 
the  practice  of  legislation  itself  shows  an  unmistakable  ten- 
dency to  conform  to  them,  as  may  be  seen  from  the  latter  por- 
tion of  the  statute  of  j\Iassachusetts  relative  to  adulteration, 
above  quoted. 

§  286.  Ordinances.— The  courts  may  apply  even  stricter 
limitations  to  ordinances,  and  may  take  cognizance  of  the 
fact  that  certain  practices  are  so  common  as  to  be  no  longer 
deceptive.  Thus  all  dealers  seek  to  make  their  wares  as  at- 
tractive as  possible,  and  for  this  purpose  use  appropriate 
methods  of  packing,  or  displaj'.  A  city  ordinance  of  Chicago 
undertook  to  prohibit  the  use  of  colored  netting  to  cover  fruit, 
on  the  ground  that  the  reflection  of  the  color  on  the  fruit 
gave  it  a  deceptive  appearance  of  freshness  and  good  quality. 
This  ordinance  was  declared  to  be  unreasonable  and  void,^ 
yet  it  cannot  be  said  that  such  legislation  is  in  principle  be- 
yond the  police  power.  The  court  in  the  case  cite-d  relied 
upon  the  recognised  power  of  judicial  tribunals  to  prevent 
an  oppressive  exercise  of  the  numieipal  ordinance  power. 

FORMS  OF  BUSINESS  LIABLE  TO  ABUSE.     §§  287-295. 

^^  287.  Nature  of  danger  or  evil.— A  considerable  amount  of 
legislation  has  Ih'cu  enacted  in  restraint  of  certain  avocations 
or  forms  of  business  which  lend  themselves  easily  to  practices 
of  deception  either  on  account  of  the  irresponsible  character 
of  1lie  dealer,  or  by  reason  of  the  inducements  he  employs 
to  Mttract  customers,  or  by  reason  of  the  ignorance  or  help- 
lessness of  the  parties  \\illi  wlioiii  he  deals.  This  (|iiestioniible 
status  attaches  notably  to  [x'ddling,  and  ion  sales,  ticket 
brokerage,  aii<l  to  lii-e,  bankrupt,  gift  or  1i\i(le  slamp  sales; 
also  to  collection,  employment,^  and  emigi'ant  agencies.  All 
these  forms  of  business  (with  the  exception  perhaps  oj"  the 
ti-a(l(!  stamp  business)  may  ninler  circumstances  ser\e  valuable 
and  necessary  economic  purposes.  The  ju-ohlem  of  the  j)olic(^ 
power  is  therefore  to  suppress  the  illegilim.ili-  while  saving 
\\\r  legitimate  business.  The  oh.ieet  is  genel';ill\-  sou'jllt  to  he 
accoHijdished  by  a  system  ol'  licenses  and  secni'ities;  (|ueslions 

'  Fn.Ht  V.  riiicnjr,,,  17S   III.  lTiO,  r)i:  -  I 'rice    v.     J'coi)lc.     lit.'!     III.     11), 

V     V    "^'''K  (il    \.   10.  MM. 


§  288  PEDDLERS. 


"J7; 


have  arisen  as  to  the  power  to  prohil)it  these  forms  of  husincss 
and  as  to  their  rehitiou  to  the  freedom  of  interstate  iiiid  for- 
eij^'n  commerce.^ 


'B' 


§  288.  Peddlers.^— Peddlin or  or  hawkinj,-  is  tliat  form  cf 
trade  which  is  carried  on  by  moving  about  from  i)lace  to  place 
with  merchandise  which  is  offered  for  sale  with  immediate 
delivery,  the  seller  having  no  fixed  place  of  business.  It 
therefore  does  not  include  the  soliciting  of  orders  by  com- 
mercial travellers  or  book  canvassers,^  or  the  delivering  of 
goods  previously  ordered ;«  it  is  doubtful  whether  it  should 
include,  as  it  has  been  held  to  do,  the  business  of  a  milk 
dealer  selling  milk  at  the  door,  but  who  has  his  regular  daily 
rounds  and  customers.'^  ]\Iassachusetts  designates  as  itincrsint 
vendors  those  who  engage  in  a  temporary  or  transient  l)usi- 
ness,  but  occupy  at  every  place  a  building  for  the  exhibition 
and  sale  of  their  goods.^  The  German  law  also  restrains  itin- 
erant brokers  and  physicians,  and  the  soliciting  of  orders  by 
personal  calls  on  others  than  merchants.'-* 

The  peddler  is  apt  to  be  irresponsible  because  he  has  no 
fixed  place  of  business,  and  therefore  no  standing  in  the  com- 
munity, and  because  he  cannot  easily  be  reached  by  legal  i)r()- 
cess.  For  the  same  reason  he  can  more  easily  than  a  settled 
merchant  engage  in  illicit  transactions.^*^  Peddlers  can  also 
do  their  business  at  less  expense  than  established  shopkeepers, 
but  the  protection  of  the  latter  from  the  inconvenience  of  a 
competition  which  cannot  be  justly  designated  as  unfnir," 
is  no  legitimate  ground  of  police  restraint,  though  mentioned 

3  For    another   illustration    of   po-  ^  Chicago  v.  Bartee,  100  111.  ^7. 
lice  legislation  against  fraud  see  ]\Ic-  «  Eev.  Laws,  ch.  65,  Sec.  1. 
Daniels  v,  J.  J.   Connelly  Shoe  Co.,         n  Trade  Code,  §  44. 

(Wash.)      71     Pac.     37;      provision  lo  People  v.  Eussell,  49  Mich.  617. 

that  purchaser  of  stock  of  merchan-  "  It  is  very  doubtful   whether   it 

dise    in    bulk   must    demand    of    the  is  possible  to  give  a  legal  definition 

vendor   a   written   statement   of   the  of  unfair  competition  which  is  dis- 

names     of     his     creditors     and     the  tinguishable  from  fraud.     The  Gor- 

amount  of  his  indebtedness.  man  law  for  the  prevention  of  un- 

4  See,  also,   §   731.  fair   competition,   adopted    May   '27, 

5  Emmons  v.  Lewiston,  132  111.  1896,  after  protracted  iniblic  dis- 
380,  24  N.  E.  58,  8  L.  E.  A.  328;  cussion  of  the  matter,  strikes  only 
New  Castle  v.  Cutler,  15  Pa.  Super,  at  practices  which  involve  fraud- 
Ct.  612,  625.  ulent  representation  regarding  qual- 

0  Stuart  V.  Cunningham,  88  la.  ity  or  prices  of  goods,  sources  of 
191,  20  L.  E.  A.  430.  supply,     misleading     trade     names, 

18 


27-1  PROTECTION  AGAINST  FRAUD.  ^  289 

as  such  in  an  English  ease,^-  which  Avas  quoted  with  appi-oval 
by  an  American  court.^-^  However,  the  license  imposed  upon 
the  peddler  may  be  justilied  as  an  attempt  to  equalise  taxa- 
tion.^ ^  There  is  less  justification  for  peddling  in  the  city 
than  in  the  country:  in  the  city  the  soliciting  of  custom  at 
private  residences  may  be  as  nnich  of  a  nuisance  as  begging, 
and  may  perhaps  on  that  ground  be  prohibited.  Thus  under 
an  act  of  1799  able-bodied  persons  were  prohibited  from 
peddling  in  Philadelphia.'-''' 

i;  289.  Scope  of  legislation.— Legislation  for  the  restraint  or 
control  of  peddling  has  been  a  common  feature  of  American 
policy  since  the  colonial  times.  The  history  of  the  legislation 
ill  Massachusetts  is  briefly  reviewed  by  Justice  Gray  in  P^iiiert 
V.  Missouri.'*^  In  New  York  a  license  tax  was  imposed  upon 
peddlers  as  early  as  1714,  and  from  17G()  to  1770  that  state 
])rohibited  peddling  entirely.  At  present  the  law  of  New  York 
requires  licenses  only  of  peddlers  in  articles  of  the  luniuifac- 
ture  of  foreign  countries.'"  The  requirement  of  a  license  is 
the  usual  form  of  regulation,  sometimes  with  excepti(Mis  in 
favor  of  those  peddling  product  of  their  own  labor  (they  are 
then  apt  to  have  a  settled  residence),'*  or  other  enumerated 
articles;  on  the  other  hand,  cerlain  classes  of  goods  (jewelry, 
wines,  liquors,  cards)  may  be  excluded  from  peddling.'-'  The 
(Jerman  Trade  Code^"  contains  a  full  regulation  of  peddling 
u[)on  the  ju'inciple  that  a  license  is  as  a  rule  issued  as  a 
matter  of  right,  that  certain  cla.sses  of  ixM-sons,  especially  ex- 
convicts,  ai'e  entirely  excluded  IVoiii  it,  and  that  under  eir- 
enmstances  specified  by  the  law,  the  license  may  be  refused; 

C'lf.      The    revealing    or   illegitimate  i7  Laws  1880,  cb.  72;  quaere  as  to 

iiHO  of  tra<lt'  Hccreta  by  employees  is  valiility  of  tliis.  Soc  §  2!)-l  infra. 

pcrliapH  the  (inly  (listinftive  form  of  is  This    slmiihl    justify   the   (lilTcr- 

<M.m|ietition    dealt    with    by    the    act  tnt    treatment    (Slate    v.    INIontgoni- 

which  does  not  i-ome  under  the  liead  cry,    i)'2    Me.    43H,    43   All.    ll'i),    but 

if  miHrepreHontatiiin.  I  he    e.\ce])ti()n    in    favor    of    farnicrs 

'*  Attorney  (ifinTal  \.  'rdn^iic,    1 L'  [■(•(idling    their    i>\\\\     products    was 

J'ricc,  ni.  hchl    to    be   unconstitutional   discriin- 

'•' State    V.    Montgomery,    !>L'     Me.  ir.alion      in      Minnesota      (State      v. 

A'M,  'Mi  Atl.   13.  Wagener,  G!>  Minn.  liOO,  3S  I;.   R.  A, 

1*  Mt.    Pleasant  v.  flntch.  (5    Iowa.  (>77).     See    Hosenblooni    v.    Stale,   89 

r)40.  X.  W.  1().-j3   (Neb.). 

IS  Commonwealth    v.    I'.rinlon,    1.3_'  '<>  \Ijihs.   Rev.    T^aws,   eh.   fi.'),   §    14, 

I'M.    St.    (W.  If). 

i*-'  l.''in   V.  H.  2m.  -■'•Cerman    Tnidc  Code,   §   .'').'')-(53. 


§  290  AUCTIONEERS-TICKET  BROKERS.  275 

certain  articles  are  entirely  forbidden,  notal)ly  intoxicatinf; 
liquors,  second-hand  clothing  and  bedding,  gold  and  silver, 
cards,  lottery  tickets,  shares  and  bonds,  obscene  writings,  ex- 
plosives and  inflammables,  weapons,  poisons  and  drugs.  The 
German  restraints  on  peddling  therefore  seem  to  belong  rather 
to  the  prevention  of  crime  than  to  the  prevention  of 
fraud,  and  they  represent  the  most  liberal  and  advanced  legis- 
lation on  the  subject. 

§  290.  Auctioneers.— The  characteristic  feature  of  auction 
sales  is  the  soliciting  of  competitive  bids  for  the  property  to 
be  sold,  the  property  going  (as  a  rule)  to  the  highest  bidder. 
The  regulation  is  usually  by  the  requirement  of  licenses  and 
bonds.  The  law  of  New  York  confines  auctioneers  to  one 
place  of  business,  and  requires  of  them  bonds  and  periodical 
accounts ;  formerly  auction  sales  were  also  subject  to  the 
payment  of  duties.  In  Massachusetts  the  license  may  contain 
conditions  relative  to  the  place  of  selling.-^  England  seems 
to  have  no  legislation  restraining  auction  sales.  France  pro- 
hibits auction  sales  at  retail  of  new  articles  of  commerce, 
specifying  a  number  of  exceptions.^^  The  German  Trade 
Code-2  declares  the  business  to  be  free,  but  allows  the  several 
states  to  provide  for  the  appointment  of  auctioneers  to  be 
placed  under  oath. 

§291.  Ticket  brokerage. 2^— The  abuses  of  this  business 
have  been  sought  to  be  met  in  some  states  by  legislation  for- 
bidding the  sale  of  passage  tickets  by  persons  not  having  pur- 
chased the  same  for  their  own  use  who  are  not  specially 
authorised  agents  of  transportation  companies.^-''  These  acts 
have  been  upheld  as  valid  exercises  of  the  police  power  in 
Illinois,  Indiana,  Minnesota  and  Pennsylvania.^^  The  opinion 
in  the  Illinois  case  states  the  theory  upon  which  this  legislation 
may  be  sustained,  viz :  that  transportation  is  a  business  affected 
with  the  public  interest,  that  the  sale  of  tickets  is  an  incident 
thereto,  that  such  business  is  subject  to  an  ample  legislative 
control,   and  may  be  directed  to  be  conducted    entirely    by 

21  Rev.  Laws,  ch.  64,  Sec.  91.  ^o  Burdick  v.  People,  149  III.  600; 

22  Law  June  25,  1841.  Fry  v.  State,  63  Ind.  5-y2 ;   State  v. 

23  Sec.  36.  Corbett,  57  Minu.  345,  L'4  L.  R.  A. 

24  See,  also,  §  61.  498 ;    Commonwealth   v.   Keary,   198 

25  Illinois    Act,    April    19.    1875;  Pa.  500. 
New  York  Penal  Code,  Sec.  615. 


276  PEOTEGTION  AGAINST  FRAUD.  §  292 

transportation  companies  or  their  agents,  if  such  policy  is 
deemed  to  serve  the  interests  of  the  public.  Similar  legislation 
was  declared  unconstitutional  in  New  York  and  Texas  for 
special  reasons;  in  New  York  on  the  ground  that  the  acts 
made  the  right  to  engage  in  the  ticket  brokerage  business  de- 
pendent upon  the  designation  and  appointment  by  transporta- 
tion companies,  the  appointee  of  any  one  company  having  the 
right  to  sell  tickets  generally,  whereby  the  business  of  inde- 
pendent ticket  brokerage  instead  of  being  suppressed  was 
merely  monopolised  at  the  option  of  any  company  r"  in  Texas, 
where  the  court  recognised  the  validity  of  such  legislation  gen- 
erally, on  the  ground  that  the  act  applied  only  to  tickets  upon 
which  a  warning  was  stamped,  thus  leaving  its  enforcement 
entirely  optional  with  the  railroad  companies.^s 

§  292.  Bankrupt  and  fire  sales.— The  objection  to  these  is 
that  they  are  not  what  they  pretend  to  be  and  that  the  public 
is  fraudulently  led  to  believe  that  superior  goods  can  be  ob- 
tained by  a  special  chance  while  as  a  matter  of  fact  inferior 
goods  are  offered  at  their  full  value.  They  are  often  con- 
ducted by  itinerant  vendors  as  defined  by  the  INIassachusetts 
statute.  They  are  subject  to  the  police  power  on  the  same 
principles  as  peddlers.-^  Questions  have  chiefly  arisen  with 
regard  to  the  license  fees.  It  has  been  said  that  under  a  munici- 
pal ordinance  power  they  cannot  be  made  prohibitive.-*"  But 
in  Vermont  and  Rhode  Island  the  courts  have  considered  the 
act  of  tlie  legislature  in  fixing  licenses  for  itinerant  vendors 
1()  !)(•  conclusive,  though  admitted  to  be  oppressive. ^^  Massa- 
chusetts requires  a  statement  under  oath  regarding  the  facts 
r(*[)r('sented  in  the  advertisements,  which  statement  is  copied 
ill  till'  state  license.-''" 

^■'^  People  ex   rrO.   Tyroler  v.  War-  ^o  Commonwealth   v.    CrowcU,    156 

dr-n   of  City  Prison,   157  N.  Y.   116,  Mass.  'J15,  30  N.  E.  1015. 

51   N,  E.  1006;  a  new  act  omitting  •»>  State   ex   rel.    Mincoa   v.   Sehoe- 

the  particular  objectionable  feature  nig,   72   Minn.   528,   75   N.   W.   711; 

haH  Hinco   been   declared  unconstitu-  Ex    parte    Moaler,    8    Ohio    Circuit 

tional   on   the  ((roiind   that  the  state  Court,    3124;    City    of    Springfield    v. 

cannot    totally    forbid   a   business  of  .lacobs  (Mo.  Ap|).),  73  S.  W.  1097. 

this   chararfor;    Pcojde    v.    Cahlwcll,  •"»»  State     v.     Harrington,     68     Vt. 

71   N.  Y.  Suppl.  6.54,  anirmcd  with-  622,  3)    L.   U.  A.   100;   State  v.  Fos- 

out  opinion.  168  X.  Y.  (571.  61   N.  K.  tcr,  21   K.  I.  L'51,  43  Atl.  66,  50  L.  R. 

1132,  A.  330. 

".Tannin   v.  State   (Texas).  51   S.  32  Rev.  Laws,  ch.  65,  Sec.  8. 
W.  11_'6,  1899,  53  L.  R.  A.  349. 


§  293  TRADE  STAMPS.  277 

§  293.  Gift  sales  and  trade  stamps. 3=*— Gift  sales  were  de- 
fined by  a  statute  oi'  New  York'-'  as  sellinji;  or  offt'rinf;  for 
sale  "upon  any  representation,  advertisement,  notice,  or  in- 
ducement, that  anything  other  than  that  which  is  specifically 
stated  to  be  the  subject  of  the  sale  or  exchan}?e  is  or  is  to  be 
delivered  or  received  or  in  any  way  connected  with  or  a  part 
of  the  transaction  as  a  gift  prize,  premium  or  reward  to  tlie 
purchaser."  The  inducement  now  generally  takes  the  form 
of  a  coupon  exchangeable  for  articles  to  be  selected  by  the 
purchaser,  and  these  coupons  are  called  trade  or  trading 
stamps.  The  policy  of  legislation  with  regard  to  gift  sales 
and  to  the  business  of  selling  trade  stamps  is  al)solut('  pi-o- 
hibition. 

In  several  jurisdictions  the  prohibition  of  gift  sales  and  of 
trading  stamps  has  been  declared  to  be  unconstitutional. •••'' 
The  conclusion  is  based  upon  the  ground  that  such  sales  have 
no  element  of  chance  in  it,  and  can  therefore  not  be  treated 
as  forms  of  gambling,  and  that  it  is  no  function  of  the  police 
power  to  protect  the  public  from  the  temptation  to  extravagant 
or  unnecessary  expenditure  offered  by  special  inducements,  or 
to  protect  conservative  dealers  from  enterprising  competition, 
and  that  the  offering  of  a  premium  for  a  sale  is  not  intrinsically 
fraudulent.  The  practice  of  making  small  gifts  to  purchasers 
or  of  distributing  souvenirs  at  theatre  performances  is  indeed 
entirely  harmless. 

The  selling  of  trade  stamps  to  merchants  and  the  furnishing 
of  premiums  may,  however,  also  be  organised  as  a  separate 
■  business,  and  it  is  against  this  business  that  trade  stamp  legis- 
lation is  directed.  The  business  has  been  so  well  described 
by  the  Court  of  Appeals  of  the  District  of  Columbia,  that  the 
words  of  the  court  should  be  quoted  at  some  length:  "The 
Washington  Trading  Stamp  Company  and  its  agents  are  not 
merchants  engaged  in  business  as  that  term  is  commonly  un- 
derstood. They  are  not  dealers  in  ordinary  merchandise  en- 
gaged in  a  legitimate  attempt  to  obtain  purchasers  for  their 
goods  by  offering  fair  and  lawful  inducements  to  the  ti-ade. 
Their  business  is  the  exploitation  of  nothing  more  nor   less 


33  See,  also,  §  60.  Suppl.  Ill;  State  v.  Dalton,  2l^  Kli. 

34  Penal  Code,   335a.  I.   77,   48  L.   E.   A.   775;    Young   v. 

35  People    V.    Gillson,    109  IST.    Y.      Com.    (Va.),  45  S.   E.   327. 
389;    People   v.   Dyeker,    76  N.    Y, 


278  PKOTECTIOX  AGAINST  FRAUD.  §  293 

than  a  cunning  device.  With  no  stoclv  in  trade  but  that  device, 
and  the  necessary  books  and  stamps  and  so-called  premiums 
with  Avhicli  to  operate  it  successfully,  they  have  intervened  in 
the  legitimate  business  carried  on  in  the  District  of  Columbia 
between  seller  and  buyer,  not  for  the  advantage  of  either,  but 
to  prey  upon  both.  They  sell  nothing  to  the  person  to  whom 
they  furnish  the  premiums.  They  pretend  simply  to  act  for 
his  benefit  and  advantage  by  forcing  their  stamps  upon  a 
perhaps  unwilling  merchant  who  pays  them  in  cash  at  the 
rate  of  $5.00  per  thousand.  The  merchant  who  yields  to  their 
persuasion  does  so  partly  in  the  hope  of  obtaining  the  cus- 
tomers of  another,  and  partly  through  fear  of  losing  his  own 
if  he  declines.  Again,  a  limited  number  only  (an  apparently 
necessary  feature  of  the  scheme),  are  included  in  the  list  for 
the  distribution  of  the  stamps,  and  other  merchants  and  deal- 
ers who  cannot  enter  must  run  the  risk  of  losing  their  trade 
or  else  devise  some  scheme  to  counteract  the  adverse  agency. 
The  stamps  are  sold  at  the  rate  of  50  cents  per  hundred  to 
the  contracting  merchants,  and  yet  purport  to  be  redeemable 
with  premium  gifts  at  the  assumed  value  of  $1.00  per  hundred. 
Unless,  therefore,  the  so-called  premiums  to  be  distributed 
among  the  diligent  collectors  of  stamps  are  grossly  overvalued 
the  scheme  cannot  maintain  itself,  for  in  addition  to  the  actual 
cost  of  the  premiums  it  has  to  bear  the  cost  of  the  books  and 
stamps,  and  the  maintenance  of  its  office  and  exhibition  room. 
If  its  ])remiums  should  have  any  fair  value,  then  the  stamp 
c(mi|)any  must  inevitably  rely  upon  the  failure  of  the  presenta- 
tion <ti'  tickets  for  redeiiiptii)ii  liy  reason  of  its  re(iuirement 
lli.it  not  less  than  i)i)()  tickets — representing  cash  ]uirehases  of 
$1)!).()() — shall  be  pasted  in  a  book  and  produced  ;it  one  time 
t<i  eiitiilr  ilic  lioMer  to  liis  priMiiiuni.  In  this  event  the  com- 
pany, if  it  actiuilly  contemplates  making  good  its  contracts, 
is  relying  upon  a  lottery,  i.  e.  tli(>  chaiKM^s  and  advantages 
of  its  game  I'oi*  its  expectations  ol"  |)i-o(it  or  gain."'"' 

Tlie  eoiieliiding  statement  that  the  business  eonslilulcs  a 
lottery  cainiot  be  conceded  to  be  correct;  foi"  the  ])nrehaser 
may,  if  he  wants  to,  secure  his  preiniimi.  ;imiI  the  ontconie  is 
entirely  within  his  control;  and  il"  the  compnny's  cah-ula- 
tioiiH  ar'e  juslilied  liy  the  doctrine  of  [Hdhnhilit ies,  it  does  not 
take  iiiiy  chances,  .ind    il    is   not    engagecl    in   gambling.      It    is 

anLariMhurjih     v.     DiHtrict    of    Cnlunibi.-i,    II    App.   D.  C  .Tlli. 


5  294  FKEEDOM  OF  COMMERCE.  271) 

not  even  an  ordinary  case  of  exploitation  of  public  credulity, 
since  there  is -no  actual  fraud,  or  misrepresentation.  The  lefjis- 
lation  is  in  reality  for  the  protection  of  the  merchants  who 
do  not  want  the  trade  stamps,  but  are  not  strong  enough  to 
refuse  them  for  fear  that  they  may  lose  business  to  a  com- 
petitor who  does  take  them.  It  is  therefore  a  case  of  protec- 
tion from  competition  with  which  the  state  should  have  no 
concern.  At  the  same  time  it  must  be  admitted  that  the  trad- 
ing stamp  business  serves  no  useful  purpose,  and  the  essential 
constitutional  question  is  whether  a  useless  business  may  be 
prohibited.  The  question  cannot  be  regarded  as  settled  in 
point  of  authority. 

§  294,  Peddling",  etc.,  and  the  freedom  of  commerce.— The 
restraint  on  peddling  and  auction  sales  may  raise  a  federal 
question  when  it  is  applied  to  goods  imported  into  the  state. 
It  is  clear  that  the  products  of  other  states  cannot  be  discrim- 
inated against,  and  a  statute  requiring  a  license  only  of  those 
who  peddle  such  products  has  therefore  been  held  unconstitu- 
tional.2"  The  same  principle  would  apply  to  products  of  for- 
eign countries,  for  "if  a  tax  assessed  by  a  state  injuriously 
discriminating  against  the  products  of  a  state  of  the  union 
is  forbidden  by  the  constitution,  a  similar  tax  against  goods 
imported  from  a  foreign  state  is  equally  forbidden.  "^^  There 
would  thus  seem  to  be  a  fatal  objection  to  the  statute  of  New 
York  which  applies  only  to  the  peddling  of  foreign  products.^'-* 
But  where  there  is  no  discrimination  against  foreign  products 
it  is  no  objection  to  the  requirement  of  a  license  of  an  auction- 
eer or  peddler  that  he  also  sells  goods  from  other  states,^" 
at  least  where  these  goods  have  become  part  of  the  general 

37Welton  V.  Missouri,  91  U.  S.  State,  284,  7  L.  R.  A.  666  (selling 
275.  soapine  manufacturerl   in   Rhode    Is- 

38  Cook  V.  Pennsylvania,  97  U.  S.      land). 

5(;g  40  Emert    v.    Missouri,    156    U.    S. 

39  Domestic  Commerce  Law,  Sec.  296.  In  Texas  it  is  held  that  a  li- 
60;  the  legislation  of  Pennsylvania  cense  cannot  he  required  from  one 
shows  acts  discriminating  in  favor  who  travels  around  selling  organs 
of  goods  the  product  or  manufac-  imported  from  other  states  and 
ture  of  the  state,  but  the  federal  carrying  one  in  lus  wagon  which  he 
question  has  not  been  passed  upon  disposes  of  if  opportunity  offers; 
by  the  courts;  Commonwealth  v.  French  v.  State  (Texas  Cr.  App.), 
Brinton,  132  Pa.  State  69;  see,  also,  58  S.  W.  1015,  52  L.  R.  A.  160. 
Commonwealth  v.  Gardner,   133  Pa. 


280  PROTECTION  AGAINST  FRAUD.  §  295 

mass  of  property  of  the  state.  A  non-discriminating  tax  upon 
drummers  is  regarded  as  more  directly  a  burden  upon  inter- 
state transactions  and  hence  void.-*^  It  should  also  be 
noted  that  the  license  paid  by  the  drummer  is  purely  a 
tax,  and  not,  as  the  license  required  of  peddlers  and  auc- 
tioneers, primarily  a  measure  of  police  regulation. 

^  295.  Non-discriminative  license  fee.— Can  a  non-discrim- 
inative license  fee  be  validly  imposed  upon  a  peddler  or  auc- 
tioneer selling  goods  brought  from  other  states  in  original 
packages?  It  was  decided  in  Woodruff  v.  Parham^-  that  a 
tax  imposed  alike  on  all  auction  sales  was  valid  even  as  to 
auction  sales  of  goods  brought  from  other  states  in  original 
packages,  but  the  decision  proceeds  upon  a  distinction  be- 
tween imports  from  other  states,  and  imports  from  abroad 
which  the  Supreme  Court  in  later  cases  has  practically  ig- 
nored.'*-^  In  Cook  V.  Pennsylvania^^  a  tax  on  auction  sales 
was  declared  invalid  as  to  imported  goods  in  original  pack- 
ages; in  that  case  the  statute  discriminated  against  imports, 
although  the  decision  does  not  rely  primarily  upon  this  dis- 
crimination, and  there  was  a  tax  on  sales  to  be  collected  by 
the  auctioneer  from  the  importer,  and  not  a  license  fee  exacted 
from  the  auctioneer.  Under  Fieklen  v.  The  Taxing  District 
of  Shelby  County^-'"'  it  would  seem  that  a  fee  might  be  exacted 
of  a  peddlei"  or  auctioneer  even  if  measured  by  his  sales,  al- 
though he  sold  in  part  imported  goods  in  original  packages, 
provided  the  peddler  or  auctioneer  were  a  resident  of  the 
.state;  but  the  authority  of  that  case  would  not  support  the 
exaction  of  a  license  fee  from  a  non-resident  coming  into  the 
state  with  goods  lo  be  sold  at  auction  or  by  peddling  in  original 
packages,  though  tlie  same  fee  should  be  required  of  residents. 

It  was  ImM  ill  McCall  v.  California'*"  that  the  imposition 
of  ;i  !ieens(^  tax  uimii  i-nilro.id  jiliciiIs  Avas  invalid  as  to  an  agent 
ol"  a  railroad  ('ompaiiy  doing  business  in  otber  states.  This 
decision  is  not  necessarily  conehisive  against  tli(>  validity  of 
a  police  regulation  restraining  ticket  brokerage,  though  such 
regulation  may  afVeet  sales  of  tickets  for  transpoi-tation  to 
anolher  state.     I'.iil    there  is  no  adjudication  upon  this  point. 

^'  iJul.l.iiiH    V.    Tjixin^'    Kistrict    <>\'  "  • '.»7   XL  H.  rA]G. 

Hhol»)y  ♦•(.iitity,  IJO  V.  S.   |H!».  .-.  \.\r,  u.  S.  1. 

««  Wall.  V2X  *'n3G  U.  S.  104. 
♦■■"LniHy  v,  Ifunlin,  IM  U.  S.  100. 


§  296         WAREHOUSE   AND   COMMISSION  MERCHANTS.  281 

The  cases  of  Brown  v.  Maryland,-''  Robbins  v.  Taxint,'  Dis- 
trict of  Shelby  County,'*^  Asher  v.  Texas,'*''  Stout(Mibiirt,'h  v. 
Hennick,^^  and  McCall  v.  C^lifornia^^  are  aiitliority  aj^ainst  the 
taxation,  though  non-discriminating,  of  businesses  or  trans- 
actions directly  representing  interstate  commerce,  but  a  dis- 
tinction might  perhaps  be  recognised  under  the  authority  of 
Plumley  v.  ]\Iassachusetts,  between  measures  of  taxation  and 
the  exaction  of  a  license  from  peddlers  and  auctioneers  not 
for  the  purpose  of  revenue  but  as  a  matter  of  police  restraint 
for  the  prevention  of  fraud. 

Under  the  decision  in  Austin  v.  Tennessee^-  it  may  perhaps 
also  be  held  that  the  packages  in. which  a  peddler  is  apt  to  sell 
are  too  small  to  constitute  original  packages. 

FIDELITY  OF  AGENTS,  DEPOSITARIES,  AND  TRUSTEES. 

§§  296-297. 

§  296.  The  special  opportunities  for  fraud  which  the  posi- 
tion of  these  classes  of  persons  carries  with  it,  have  given  rise 
to  restrictive  police  regulations.  A  considerable  part  of  this 
legislation  applies  to  corporations,  and  to  banking  and  in- 
surance, and  therefore  rests  upon  special  titles  of  state  control 
to  be  treated  of  later  on.^^ 

§  297.  Warehousemen  and  commission  merchants.— Atten- 
tion should  here  be  called  to  the  statutes  regarding  warehouse- 
men and  commission  merchants.  For  the  former  the  very 
elaborate  regulations  of  Illinois  may  be  referred  to.-'"'-*  These 
regulations  apply  chiefly  to  warehouses  of  grain  in  which  the 
grain  of  dift'erent  owners  is  mixed  together.  The  owner  or 
manager  of  such  warehouse  must  take  out  a  license  and  give 
a  bond;^^  the  grain  he  receives  must  before  being  stored  be 
inspected  and  graded  by  an  official  inspector  and  must  be 
stored  with  grain  of  similar  grade  received  at  the  same  time, 
the  grain  may  be  inspected  at  any  time,  and  the  warehouse 
commissioners  have  power  to  examine  books  and  owners.  The 
warehouseman  must  make   out  and   post  weekly  stntenionts 

47  12  Wheaton,  419.  1871 ;  Rev.  Stat.  Title  Railroads  ami 

48  120  U.  S.  489.  Warehouses. 

49  128  U.  S.  129.  •'•'  The  power  to  make  this  reqiiire- 

50  129  U.  S.  141.  ment   was  sustained   by   the   Unitetl 

51  136  U.  S.  104,  States    Supreme    Court    iu    W.    W. 

52  179  XJ.  S.  343.  Cargill  Co.  v.  Minuesota,  180  U.  S. 

53  §§  399-401,  infra.  452. 

54  Acts  of  April  13  and  April  25, 


282 


PROTECTION  AGAINST  FEAUD.  S  298 


of  the  amoimts  of  each  grade  of  grain  stored.  It  was  held  that 
it  was  inconsistent  with  the  fiduciary  position  of  these  ware- 
housemen that  they  shoukl  store  grain  of  their  own  because 
this  woukl  give  them  an  advantage  over  other  grain  dealers  ;^^ 
before  the  decision  of  the  lower  court  was  affirmed,  a  statute 
was  enacted  relieving  them  from  this  disability  under  special 
inspection  and  regulations  to  be  framed  by  the  warehouse 
commissioners;'^"  but  this  statute  was  declared  to  be  contrary 
to  the  constitutional  policy  regarding  warehouses  and  there- 
fore void.^^  "Warehousemen  must  also  receive  grain  for  stor- 
age without  discrimination  and  at  rates  fixed  by  law,  but  this 
duty  has  no  relation  to  the  prevention  of  fraud,  but  rests  on 
the  ground  that  the  business  is  one  affected  by  a  public  in- 
terest.^'' 

Statutes  regulating  the  business  of  commission  merchants 
have  been  enacted  in  a  number  of  states  within  the  last  ten 
years.*'*'  These  acts,  applying  chiefiy  to  the  consignees  of 
farm  products,  provide  for  the  taking  out  of  licenses,  the 
rendering  of  accounts  and  in  some  cases  for  the  giving  of 
bond  by  the  commission  merchant.  The  principle  of  such 
regulation  was  sustained  in  Illinois  in  the  analogous  case  of 
l)iitter  and  elu^ese  factories  on  the  co-0])erative  or  dividend 
plan,'*!  and  tlif  Illinois  statute  has  been  upheld  with  the  ex- 
ception of  certain  administrative  provisions  not  regarded  as 
essential  to  the  main  ])urpose  of  the  act.*'- 

s;  298.  Public  interest  in  prevention  of  fraud.— There  is 
some  autluiril\  for  holding  that  the  exercise  of  the  police 
power  foi-  the  prevention  of  fraud  will  not  be  maintained  if 
it  ai)pears  that  the  l;i\v  intends  to  alToid  protection  to  private 
parties  mihI  not  to  t  lie  [mhlic. 

.\    inimber   of  states   have   enacted   so-called    bottling   acts, 


f'O  Central     Klcvator    Coiiipniiy    v.  '■' JFuwlhorn    v.    People,    lOit    ill. 

lVo|.lc,    174    111,   '^iVA,   r,]    N.    K.    L'.U.  :i(tL*. 

r-T  An    .May  L'H,  IKltT.  "a  La.sluT    v.    People,    1S;{    111.   2126, 

f'"  llannali    v.    P.-upl.-,    Ills    III.    77,  r,r,    N.    K.    (jtiii.      The    iMiclii^jaii    ael, 

M   N.   K.  77«;.  Iiowcvcr,     has    l»ecn     held    iiiie.onsti- 

f'"  H»H'.   .'{"3,   infra.  tutional     as     elass     lojjislatidn      unt 

1"  WcHf    Virginia,    IMU,  t  .liitnrnia  jiislifie<l  l»y  police  power;   People  ex 

ISPfi,    WaHhiiiKlo"    l^il-'>,    .N'ortli    Ka  lel.     ValrMiline    v.    Coolidpre.     Harieii 

kota    1H»7.    IllinoiH,    Miehigaii,    Miii  <  irciiil   Jnilpe.  IL'I    Miili.  (JGI,  .'50  L. 

roflota  1HJ»«>.  U.  A.  WH,  83  N.  W.  594. 


§  298  PUBLIC  INTEREST.  283 

by  which  persons  engaged  in  nianulacturing,  bottlint^:  or  selling? 
specified  beverages  in  casks,  barrels,  kegs,  bottles  or  cases, 
with  marks  of  ownership  stamped  thereon,  may  register  such 
marks,  whereupon  it  is  made  unlawful  without  the  consent 
of  the  owner,  to  fill  with  any  beverages,  or  to  traffic  in.  or  to 
destroy,  any  such  barrels,  bottles,  etc.«-'  The  act  of  Illinois 
was  declared  unconstitutional  partly  as  being  class  legislation, 
partly  because  it  authorised  unreasonable  searches,  and  partly 
because  it  protected  bottlers,  but  not  the  public.  "It  is  for  a 
mere  private  benefit,  having  no  relation  to  the  police  power 
or  the  protection  of  the  public  against  frauds  or  injurious 
preparations;  since,  if  the  brewer  or  dealer  consents,  the 
bottles  or  kegs  may  be  refilled  with  any  sort  of  drink  differ- 
ent from  the  marks,  and  it  wall  be  no  offense  under  the  acts, 
however  injurious  to  the  public."'^-*  Yet  the  provision  for- 
bidding the  refilling  of  bottles  only  without  the  written  con- 
sent of  the  owner  was  retained  in  the  re-enactment  of  the 
statute  eliminating  the  other  features  that  had  been  declared 
unconstitutional.^^ 

The  statute  of  Texas  forbidding  the  sale  of  railroad  tickets 
by  others  than  authorised  agents  of  railroad  companies  was 
held  to  be  unconstitutional  solely  for  the  reason  that  it  re- 
quired as  a  condition  for  its  operation  that  the  railroad  com- 
pany using  the  ticket  should  stamp  a  warning  on  it.  It  Avas 
held  that  there  was  no  absolute  requirement  to  so  stamj) 
tickets,  and  that  the  enforcement  of  the  act  was  therefore 
left  entirely  optional  with  the  railroad  company.'*" 

In  both  eases  the  reasoning  is  somewhat  strained.  In  both 
measures  there  was  some  public  interest,  though  not  to  the 
same  extent  as  that  of  the  private  parties  more  immediately 
concerned;  and  the  legislature  might  well  rely  upon  the  in- 
terest of  the  private  parties  to  see  to  the  enforcement  of  the 
act,  and  thus  to  protect  the  public  from  fraud.  In  othov 
words,  where  a  public  interest  coincides  with  a  stronger  i)ri- 
vate  interest,  it  would  seem  to  be  no  fatal  defect  to  leave  the 


63  Illinois  Act  of  1873;  New  York  '■*  Lippman  v.  People.  175  III.  101, 

Laws   1887,   ch.    339,   and    1896,   eh,  51  N,  E.  872,  1898. 

174;  Mass.  Rev.  Laws,  ch.  72,  §  15.  "s  Act  May  11.  Ut«il.    S.m>  '2or,  111. 

The  New  York  Act  was  sustained  in  497. 

People  V.  Cannon,  139  N.  Y.  32.  «6  jannin  v.  State,  51  s.  W.  n2(i. 


284  PEOTECTION  AGAINST  FKAUD.  §  298 

protection  of  the  public  to  private  action.  Practically  nearly 
all  legislation  for  the  prevention  of  fraud  operates  in  this 
way. 

'^The  power  of  the  state  to  impose  tines  and  penalties  for 
a  violation  of  its  statutoiy  requirements  is  coeval  with  gov- 
ernment ;  and  the  mode  in  which  they  shall  be  enforced, 
whether  at  the  suit  of  a  private  party  or  at  the  suit  of  the 
public,  and  what  disposition  shall  be  made  of  the  amounts 
collected,  are  merely  matters  of  legislative  discretion.  "^'^ 

"^  Missouri  Tacilic  K.  Co.  v.  Humes,  115   U.  S.  512. 


CHAPTER    XII. 

PROTECTION  OF  DEBTORS. 

§299.  Protection  against  oppression  in  general.  — Wlicre 
the  police  power  seeks  to  afford  protection  to  peace,  security 
or  order,  or  against  fraud  and  dishonesty,  it  may  justify  its 
interference  on  the  ground,  that  its  ultimate  aim  and  effect  is 
the  prevention  of  distinctly  illegal  acts,  violating  specific  and 
well-established  rights.  We  now  enter  upon  a  field  somewhat 
different  in  character.  Our  whole  economic  system  is  based 
upon  a  very  wide  liberty  of  dealing  and  contract,  and  it  is 
deemed  perfectly  legitimate  to  use  this  liberty  for  the  purpose 
of  securing  special  advantages  over  others.  Tiie  resulting 
disparity  of  economic  conditions  is  not,  on  the  whole,  regarded 
as  inconsistent  with  the  welfare  of  society.  Yet  a  different 
view  seems  to  be  taken  of  this  liberty  of  dealing,  where  eco- 
nomic superiority  is  used  to  dictate  oppressive  terms,  or 
where  a  degree  of  economic  power  is  aimed  at  that  is  liable 
to  result  in  such  oppression.  The  theory  of  legislative  inter- 
ference seems  to  be  in  some  cases,  that  oppression  is  in  itself, 
like  fraud,  immoral  and  a  wrong  either  against  the  individual 
affected  thereby  or  against  the  public  at  large ;  in  other  cases, 
that  the  excessive  dependence  of  whole  classes  of  the  com- 
munity threatens,  though  perhaps  only  remotely,  the  social 
fabric  with  grave  disturbance  or  ultimate  subversion  and  ruin. 

COLLECTION  OF  DEBTS.     §§  300-30L 

§  300.  Scope  of  legislation.— The  collection  of  debts  is  tiie 
maintenance  of  the  creditor's  right  and  therefore  a  function 
of  the  administration  of  justice.  Provisions  which  merely  tend 
to  facilitate  the  enforcement  of  claims,  by  the  creation  of 
liens  or  other  appropriate  means,  do  not  belong  to  the  police 
power,  unless  the  debt  arises  out  of  a  duty  which  in  a  special 
manner  concerns  the  public  welfare,  and  special  rights  are 
given  to  the  creditor  to  secure  a  more  efficient  performance  of 
the  duty.^  There  is  on  the  other  hand  a  considerable  amount 
of  legislation  which  does  not  tend  to  aid  the  collection  of  debts, 

1  Atchison,  T.  &  St.  F  E.  Co.  v.  Matthews,  174  U.  S.  96. 

285 


286  PROTECTION  OF  DEBTORS.  §  301 

but  restrains  the  creditor  for  the  purpose  of  protecting  debtors 
as  a  class  from  imdue  oppression.  Partly  this  legislation 
aims  to  inhibit  annoying  practices,  and  partly  it  aims  to  give 
the  debtor  protection  against  an  excessive  burden  of  debt.  In 
legislation  of  the  latter  class  (usury  laws,  bankruptcy  laws, 
legal  tender  laws)  the  constitutional  aspect  is  very  different 
according  as  it  operates  upon  existing  contracts  or  as  it  only 
affects  contracts  to  be  entered  into  after  the  enactment  of  the 
law.  The  operation  upon  existing  contracts  will  be  consid- 
ered in  connection  with  the  general  problem  of  the  taking 
of  property  under  the  police  power.  In  legislation  of  the  class 
first  mentioned  the  difference  between  existing  and  future 
contracts  is  immaterial. 

§  301.     Annoying    practices    in    the    collection   of    debts.— 

Where  one  person  charges  another  untruthfully  with  refusing 
to  pay  a  just  debt,  and  the  charge  is  made  in  writing,  it  con- 
stitutes a  libel,  unless  the  communication  is  privileged,  which 
in  some  jurisdictions  is  held  to  be  the  case  where  it  appears 
that  the  communication  is  made  merely  for  the  purpose  of 
nuitual  protection.2  The  idea  of  mutual  protection  may  be 
negatived  where  the  avowed  purpose  is  to  coerce  payment,  all 
the  more  so  where  the  debt  is  outlawed  or  more  is  claimed 
than  is  actually  due.^  The  actual  existence  of  a  debt  is  no 
jiistiiication  where  there  is  a  counterclaim,  or  where  the  debtor 
is  charged  with  a  general  habit  of  not  paying  his  debts,  or  with 
being  generally  unworthy  of  credit;'*  perhaps  also  where  the 
publication  ainouuts  to  a  boycott  or  conspiracy  to  ruin  the 
debtor."'  A  .sufficient  jjublication  is  constituted  by  the  send- 
ing of  envelopes  marked  "Bad  debt  collecting  agency"  or  in 
a  similar  way." 

TIh'   decisions  cited   having  been  rendered   under  the  com- 
MKUi  law.  Ilie  varKlily  of  stalulcs  aHixing  a  ])('nalt_\'  lo  llie  same 

=  Wiii<liHch-Mulilli!uiHer        Hrowinjj  '  Weal  on    v.    liarnicoat,    175    Mass. 

Co.   V.   BiU'om,   'Jl    Ky.   T>.    Kcp.   <.)'JS,  \ry\.  40  1..  R.  .\.  CIJ,  .')0  N.  E.  (511); 

ry:\  S.  VV.  .'j'JO;    McDcnnolt    v.   Union  Nettles  v.  Soiiiniervell,    6    Tex.    Civ. 

Cre.lit  <;<).,   76   Minn.   H4,   78   N.   W.  A]^).  i)'27,  2.')  8.  W.  G.'jS. 

S«fi7,     70     N.     W.    r)7.'{;     HeynoMs    v.  r>  Me!  iilyre     v.     Wciii.it,     I'.tf.     I'a. 

I'luinlxTM'  Material   I'roteetivo  Ahbo-  .Mi,    I.T    All.   (WWi. 

rial  ion,  r»:{  .\.   y.  Hiipjil.  30.1.  "Stale     \.     AriMHtroHK,     Hni     M". 

■••State     V.     ArmHtrony,     lOO     Mo.  :i!).".     I :;     I;.     K.    A.    41!),    Mnct/.e    v. 

.".W,     1".    I,,     i:.     A.     )Hi;     Mnet/.e    v.  'I'ntenr    77  Wis.  'jnO. 
Tntoiir,  77   \Vi».  J.'Ui,  '.»  1.  R.   A.  M(i. 


§  801  ILLEGAL  COLLECTION  PRACTICES.  287 

acts  would  not  be  questioned.  A  somewhat  difl'erent  question 
would  be  presented  by  legislation  absolutely  forbiddinj,'  col- 
lection practices  of  an  annoying  character.  A  statute  of  Maine 
forbids  the  public  advertisement  for  sale  of  debts,  demands  or 
judgments/  a  statute  of  jMassachusetts  makes  it  unlawful  for 
debt  collectors  to  wear  striking  costumes.^  Laws  of  this  char- 
acter go  beyond  the  protection  against  libel,  for  they  ai)ply  to 
just  as  well  as  unjust  claims,  they  benefit  the  dishonest  debtor 
as  well  as  one  who  is  harassed  without  good  cause.  Two 
arguments  may  be  used  to  justify  such  legislation:  first,  that 
since  it  is  almost  inevitable  that  now  and  then  injustice  Avill 
be  done  by  these  forms  of  collection,  the  law  may  forbid  them 
altogether,  on  the  ground  that  measures  for  the  prevention  of 
an  abuse  may  strike  at  the  Avhole  practice  liable  to  abuse, 
unless  such  practice  is  essential  to  the  enjoyment  of  valuable 
social  and  economic  rights;  second,  that  the  enforcement  of 
even  a  just  debt  must  avoid  methods  which  are  humiliating 
or  create  a  public  scandal.  On  both  these  grounds  the  statute 
of  ]\Iassachusetts  is  easily  justified. 

If  the  Maine  law  is  to  be  upheld  it  must  be  on  the  ground 
that  the  advertisement  of  lists  of  debts  for  sale  is  merely  a 
colorable  device  for  harassing  debtors.  If  advertising  de- 
mands for  sale  is  not  a  necessary  or  usual  means  of  dis- 
posing of  them,  the  legislature  may  take  notice  of  the  real 
purpose  of  the  practice.  It  is  therefore  not  necessary  to 
hold  that  the  assignment  of  choses  in  action,  not  being 
recognised  by  the  common  law,  is  within  the  absolute  control 
of  the  legislature.  If  the  law  may  forbid  advertisement  of 
debts  for  sales,  it  may  also  forbid  the  publication  of  lists  of 
debtors,  since  that  is  the  true  intent  of  the  former  practice. 
To  sustain  such  prohibition,  the  practice  must  be  regarded  as 
going  beyond  what  is  necessary  or  fair  for  the  protection  of 
creditors'  interests :  the  coercion  of  the  debtor  must  not  assume 
the  form  of  an  appeal  to  public  obloquy  and  a  provocation  of 
public  disgrace.  But  a  creditor  must  be  allowed  some  means 
of  moral  coercion,  and  the  circulation  of  lists  among  the  trade 
for  the  purpose  of  warning  others  and  cutting  off  credit 
should  be  held  to  be  a  legitimate  and  a  constitutional  right." 

7  Laws  1899,  cli.  112.  o  In   Hartnett   v.   Plumbers'   Siip- 

8  Laws  1899,  ch.  238,  Rev.  Laws  ply  Association  of  New  Enfjland, 
ch.  212,  §  88.  169   Mass.    229,   47   N.   E.    1002,   38 


288 


PKOTECTION  OF  DEBTOKS. 


§302 


USURY  LAWS.     §§  302-304. 

§  302.  History  of  legislation.— Legislation  against  the  ex- 
action of  excessive  rates  of  interest  for  the  use  of  money  loaned 
is  of  ancient  date.  The  history  of  the  Roman  law  shows  many 
and  varj'ing  provisions  upon  this  subject;  as  the  law  was 
finally  settled  bj-  Justinian,  interest  above  a  certain  rate  could 
not  be  legally  stipulated,  and,  if  paid,  could  be  recovered,  and 
professional  usury  made  infamous.^'^  The  Canon  law,  which  in 
this  matter  became  the  common  law  of  Christianity,  i:)rohib- 
ited  Christians  from  taking  any  interest  whatever,  so  that  the 
loaning  of  money  would  have  become  a  monopoly  of  the  Jews. 
The  principle  was  unenforceable  and  was  either  directly  ig- 
nored or  circumvented  by  various  devices:  purchase  of  rents 
and  annuities,  partnership  with  stipulated  and  guaranteed 
profits,  charges  for  bills  of  exchange,  and  compensation  for 
risk  of  loss  and  for  loss  of  opportunity  of  profitable  investment 
of  the  money.' ^ 

In  England  usury  was  an  ecclesiastical  offense,  and  was  also 


L.  li.  A.  194,  it  was  held  that  the 
application  of  such  methods  was  be- 
yond the  corporate  powers  of  an 
association  formed  for  other  pur- 
poses; but  that  a  right  is  not  en- 
joyed by  some  corporation,  does  not 
prove  that  it  is  not  a  common  or 
even  a  constitutional  right. 

Note.— Ab  to  prohibition  of  as- 
signment of  claims  against  wage- 
earners,  or  of  garnishment  of  their 
wages,  see  Singer  Mfg.  Co.  v. 
Fleming,  30  Neb.  670,  58  N.  W. 
226.  The  right  to  assign  choses  in 
action  and  to  garnishee  claims  is 
not  a  common  law  right  and  is 
therefore  within  the  power  of  the 
IcgiHiatiire,  subject  to  the  principles 
of  otpiality.  Laws  are  not  uncom- 
mon (lllinoiH,  Indiana,  Iowa,  Min- 
nesota, Nebraska,  Ohio,  Pennsyl- 
vania, Sntifli  Dakota,  Wisconsin) 
forbidding  the  sending  out  of  the 
Hiafe  by  assignment  or  otherwise  of 
claims  for  debt  against  residents  in 


order  to  have  the  same  collected  by 
attachment  proceedings  in  the 
courts  of  another  state.  This  pro- 
hibition has  been  upheld  in  the  Ne- 
braska case  last  cited,  also  in 
Sweeny  v.  Hunter,  145  Pa.  St.  363. 
The  prohibition  was  held  to  be  con- 
trary to  the  principle  of  equality  in 
Re  Flukes,  157  Mo.  125,  51  L.  R.  A. 
176. 

10  Digest  12,  6:  26  pr.;  Code  2, 
11:   20. 

'1  Endemann,  Romanistisch-Kano- 
nistiche  Wirtschaflslehre.  Roscher  I, 
574,  quotes  the  following  form  of 
evidence  of  indebtedness:  I  ac- 
1-jiowledgo  having  accepted  from 
Titius  1000  gold  pieces  to  expend 
them  in  legitimate  business;  and 
ir.  place  of  an  uncertain  higher 
profit  tliat  might  accrue  to  him 
from  su<'li  business,  1  jjroniisc  to 
pay  him  annually  six  per  centum, 
and  to  guarantee  liini  against  tho 
risk  of  tli«'  loss  of  sai<i  sum. 


§  303  USURY  LAWS.  289 

dealt  with  by  several  statutes.' ^  "The  iej^al  effect  of  tiicst* 
provisions  seems  to  have  been  to  declare  all  taking  of  interest 
for  money  to  be  illegal,  and  a  detestable  sin,  but  not  punish- 
able otherwise  than  by  a  forfeiture  of  the  interest  taken  un- 
less it  exceeded  ten  per  cent,  in  which  case  it  was  both  a  tem- 
poral and  a  spiritual  offense."'^'  Under  the  influence  of  eco- 
nomic doctrines,  showing  the  futility  or  harmfulness  of  the 
customary  usury  legislation,  the  whole  legislation  was  repealed 
in  1854,  but  extortionate  practices  of  professional  money 
lenders  have  again  been  dealt  with  by  legislation  enacted  in 
1900.  In  Germany  the  law  likewise  confines  itself  to  restrain- 
ing aggravated  forms  of  usury,  i.  e.  cases  in  which  the  lender 
takes  an  unconscionable  advantage  of  the  necessities  or  of 
the  improvidence  of  the  borrower  in  order  to  charge  a  plainly 
exorbitant  rate  of  interest.^ ^  Austria  punishes  the  stipula- 
tion of  terms,  which  by  reason  of  the  excessive  advantages 
conceded  to  the  lender  tend  to  induce  the  economic  ruin  of 
the  borrower,  where  the  latter  through  mental  weakness,  in- 
experience, or  excitement  fails  to  realise  the  true  character  of 
the  transaction.^^ 

§  303.  American  legislation.— In  America,  a  minority  of 
states^^  allows  contractual  stipulation  for  any  rate  of  inter- 
est, fixing  a  legal  rate  only  for  cases  in  which  the  parties  do 
not  otherwise  provide.  In  most  of  the  states,  however,  a  max- 
imum rate,  varying  from  six  to  twelve  per  cent,  is  fixed  by  law. 
and  all  contracts  stipulating  for  a  higher  rate  are  declared 
usurious.  Either  the  excess  of  interest,  or  the  whole  of  the 
interest,  or  even  the  principal,  is  then  forfeited  as  a  penalty.'' 

The  operation  of  general  usury  laws  is  modified  or  taken 
away  by  statutory  provisions  varying  in  different  states  and 
applicable  chiefly  to  corporations,  banks,  pawnbrokers,  and 
building  and  loan  associations.^^  Corporations  as  borrowers 
are  sometimes  forbidden  to  interpose  the  defense  of  the  usui-y 

12  Especially  37  Henry  VTII,  c.  pawnbrokers  are  not  affected  hy  this 
9    and  13  Eliz.  c.  8.  legislation. 

13  Stephen,   History   of   the   Crim-         1=  Law  May  28,  1881. 

inal  Law,  III,  p.  198.  i«  Stimson    Am.    Stat.    Law,    Roc. 

14  Penal  Code,  Sec.  302,  a-d.    The     4812,   enumerates   nine, 
laws  of  the  several  states  regarding         i'  Stimson,  §  4S32. 


18  Stimson,  §  4813-4819. 


m 


290  PKOTECTION  OF  DEBTOES.  §  304 

laws.^^  In  New  York  the  penalties  for  usury  are  reduced  in 
favor  of  banks  and  bankers,  in  order  to  place  them  on  an 
equality  in  that  respect  with  national  banks.^f*  ]\[oreover  any 
rate  of  interest  may  be  stipulated  for  in  that  state  on  call  loans 
on  ^5,000  and  upwards  secured  by  negotiable  collateral.^i  In 
a  number  of  states  a  higher  than  the  otherwise  maximum  legal 
rat^  of  interest  may  be  charged  by  pawnbrokers  ;22  on  the 
other  hand  the  taking  of  excessive  interest  by  pawnbrokers  is 
sometimes  made  a  misdemeanor.^"  In  Illinois  incorporated 
pawners'  societies  may  charge  twice  the  legal  rate  of  interest, 
but  may  not  distribute  more  than  6  per  cent  dividends  annu- 
ally.-^ ^Massachusetts  fixes  a  maxinnnn  rate  of  interest  only 
for  loans  secured  by  pledge  of  personal  property.-"'  The  pre- 
miums bid  for  loans  by  building  and  loan  associations  to  their 
membovs  arc  commonly  declared  to  be  not  usurious. ^^ 

§304.  Question  of  constitutionality,-"— Usury  legislation  is 
undeniably  a  species  of  regulation  of  charges,  and,  upon  prin- 
ciple, open  to  the  constitutional  doubts  which  have  been  felt 
with  regard  to  this  form  of  legislative  control  in  general. 
Loaning  money  (unless  by  banks  or  pawnbrokers)  is  neither  a 
business  affected  with  a  i)ubli('  interest,  nor  one  particularly 
concerning  safety  or  morals.  That  the  legislation  originated 
as  a  relief  from  absolute  prohibition,  and  was  in  the  beginning 
in  the  nature  of  a  license,  is  an  inadequate  theoretical  .iustifica- 
tion,  siiK-e  antiquated  and  exploded  theories  should  not  be 
allowed  to  control  eonstitutional  principles.  But  the  legisla- 
tion is  so  firmly  established  that  if  regulation  of  charges  is 
regarded  as  a  vjilid  i'oi'ui  of  exercise  of  llie  poliee  power  subject 
to  tlic  priiieipli'  of  e(|nality,  tbe  singling  out  of  that  particular 
flass  oi'  charges  in;iy  ;i1  least  be  justified  on  the  ground  of 
historical  1  radii  ion. 

As  till'  iiia.xiimini  legal  i-ale  of  interest  is  always  above  the 
ruling  commercial  rate.  IIi.tc  can  he  no  (piestion  of  confiscatory 
re<_rulatioTi. 

e-Ill.   |{cv.  Htnt.  eh.  74,  §11;   N.  -••'New  York  Laws,   185).'5,  Hi.  75; 

V.    \j.   iH.-n,    <•!,.     17L';      Stiinson,    §  Hi.  Hcv.  Stnt.  cli.   107:i,  §  '2. 

48.3;-).  -*  Act   .\hir<-li  l:!),  1S<)9,  §  f,,  10. 

20  New  York  Baiikinf;  Law,  §  H.'j.  -'"  Kcv.  Laws,  ch.  102,  §  47-68, 

21  LnwH  of  188'J,  fh.  2:M.  -"So   New    Vnrk    P.inikiiifr  Law,   § 

22  Rr.  ill  fllinoiH  :iii<l  ('alil'driiia ;  178;  Illinois  H.mirslciel  Loan  Ass'ii 
niiBtaiii''!   .T.'i<l<M(,ii    V.   SliMuI.   'JO   <':il.  Ad,   §   (il. 

267.  -7  Soc,   also,   §   .'in.'"). 


§  305  BANKRUPTCY   LEGISLATION.  291 

Arbitrary  discriminations  in  depriving  of  the  benefit  or  re- 
lieving of  the  restraint  of  the  usury  laws  might  be  held  to 
violate  the  principle  of  equality,  but  the  singling  out  of  the 
special  classes  of  loans  above  mentioned  has  not  been  and 
cannot  properly  be  held  arbitrary.  If  corporations  are  for- 
bidden to  interpose  the  defence  of  usury,  this  may  be  justilicd 
on  the  ground  that  they  exist  merely  by  legislative  authority 
and  that  their  limited  liability  increases  the  risk  of  the 
lender.  Some  question  has  been  made  with  regard  to  laws 
sanctioning  the  payment  of  premiums  in  addition  to  the  high- 
est rate  of  interest  on  loans  made  by  building  associations,  and 
in  Kentucky  they  have  been  condemned  as  conferring  special 
privileges  upon  a  particular  class  of  corporations,^^  but  it  is 
generally  recognised  that  the  co-operative  character  of  this 
plan  of  loaning  money  makes  the  general  considerations  under- 
lying usury  legislation  inapplicable.-'' 

BANKRUPTCY  LEGISLATION.     §§  305-307. 

§  305.  Power  to  relieve  insolvents.— Legislation  regarding 
insolvent  debtors  or  bankrupts  rests  upon  considerations  of 
policy  which  by  common  consent  modify  the  application  of 
strict  justice.  The  judicial  enforcement  of  obligations  is  essen- 
tial to  the  maintenance  of  private  right;  but  as  the  law  need 
not  recognise  every  obligation  assumed  as  valid,  so  it  may  set 
limits  and  bounds  to  the  compulsory  processes  which  give 
effect  to  valid  obligations.  It  does  so  by  the  enactment  of 
statutes  of  limitations.  It  may  restrict  the  creditor's  remedy 
in  point  of  substance  as  well  as  in  point  of  time.  Thus  all 
modern  systems  of  law  have  abandoned  imprisonment  as  a 
normal  method  of  collecting  debts;  the  common  laAv  did  not 
allow  lands  to  be  sold  on  execution  for  simple  debts.  Just  as 
the  liberty  of  contract  does  not  mean  that  a  man  nuiy  be 
allowed  to  bind  himself  to  servitude  for  life,  so  the  cnforce- 

28  Gordon  v.  Winchester  BIdg.  Bldg.  Loan  Assoc 'n  of  Saginaw  Co. 
etc.  Assoc 'n,  12  Bush,  110;  Hender-  v.  Billing,  104  Mich.  186;  Iowa  Sa%-- 
son  Bldg.  Loan  Assoc 'n  v.  Johnson,  ings  &  Loan  Assoc 'n  v.  Heidt,  107 
88  Ky.  191.  Ja-  -^''>  "^^  L.  R.  A.  689;  Archer  v. 

29  McLaughlin  v.  Citizens  BIdg.  Baltimore  B.  &  L.  Assoc 'n,  45  W. 
Loan  Assoc 'n,  62  Ind.  264,  274;  Va.  37;  Vermont  Loan  &  Trust 
Holmes  v.  Smythe,  100  111.  413;  Assoc 'n  v.  Whithed,  2  N.  D.  82; 
Winget  V.  Quincy  B.  &  H.  Assoc 'n,  Endlich,  Law  of  Bldg.  Associations, 
128  111.  67,  21   N.  E.  12;   People's  §  342-366. 


292  PROTECTION  OF  DEBTORS.  §  306 

ment  of  contracts  and  obligations  does  not  require  that  a 
debtor  should  be  stripped  of  all  his  substance  or  of  the  bare 
means  of  existence  to  satisfy  his  creditor.  Considerable  varia- 
tions of  policy  are  possible  in  the  extent  of  exemption  allowed 
to  the  debtor;  but  as  long  as  such  laws  are  general  and  apply 
only  to  debts  to  be  contracted  in  the  future,  no  constitutional 
question  arises  with  regard  to  them. 

>;  306.  Prospective  state  insolvency  laws.— Insolvency  and 
bankruptcy  acts  belong  to  the  same  general  order  of  legisla- 
tion. Those  insolvent  laws  which  give  relief  only  from  impris- 
onment, are  in  reality  mere  exemption  laAvs,  the  distinguishing 
feature  of  bankruptcy  legislation  being  the  discharge  of  the 
debtor  from  the  obligation  of  his  debts,  so  that  his  after- 
acquired  property  is  entirely  free.-"^"  Bankruj")tcy  laws  may 
thus  be  said  to  operate  upon  the  obligation  of  contracts  and 
not  merely  upon  the  remedy.  This  was  the  point  insisted 
upon  by  Chief  Justice  JNIarshall  in  his  dissent  in  the  case  of 
Ogden  V.  Saunders.^^  The  Supreme  Court  had  held  in  Sturges 
V.  Crowninshield^-  that  a  state  insolvent  law  discharging  a 
debtor  from  debts  contracted  before  the  enactment  of  the  law 
was  unconstitutional  as  impairing  the  obligation  of  contracts, 
but  held  in  Ogden  v.  Saunders  that  a  similar  hiw  operating 
upon  debts  contracted  in  the  future  was  not  within  the  pro- 
hibition, since  the  existing  law  modified  the  obligation  of  the 
contract  ab  initio.  Even  such  a  law,  however,  was  refused  any 
extra-territorial  effect  upon  the  rights  of  non-resident  credit- 
ors; hence  the  discharge  of  the  debtor  has  never  iK^conie  a 
conspicuous  feature  of  state  insolvent  laws. 

There  was  considerable  ground  for  the  conlention  so  strongly 
urged  by  Marsliall  that  the  prohibition  of  state  legislation 
impairing  th(^  obligation  of  contracts,  in  eonnection  with  the 
power  given  to  Congress  1o  eiiaci  iiiiirni-iii  bankruptcy  laws, 
was  intended  to  remove  the  powei-  ol'  Ijiiiikniplcx-  legislation 
froiii  the  states;  hut  llir  (•()iiteiii|)oraneoiis  const  ruet  ion  of  the 
const  it  lit  ion  was  otlierwise,-''  and  the  Sui)renie  Court  in  adopt- 
ing it  as  its  own,  and  eonfining  the  const  ilutional  prohibition 
t(»  l)anl<rnptey  legishilion  ol"  ret  ros|)e<'t  ive  opei*ation,  conceded 
to  the  states  a  power  which  is  everywhere  regiii-ded  ws  inci- 
dental to  the  legislation  concerning  the  relation  ol"  creditor  and 

inQudpn    v.   Saunders,   12   Wheat.         az  4  Whrat.  1  L'2. 
L'13,  MH,  *Jfi4.  83  12  Wheat.  278. 

8112  Wheat  21a. 


§  307  CONTRACTS  PAYABLE  IN  GOLD.  293 

debtor,  and  which  has  been  exercised  by  all  the  states  except 
during  the  brief  periods  in  which  the  United  States  has  as- 
sumed its  exercise  by  the  enactment  of  national  })aiil<riiptcy 
laws. 

i;  307.  Retrospective  bankruptcy  legislation.-"— Retrospect- 
ive bankruptcy  legislation  undoubtedly  impairs  the  obligation 
of  contracts,  and  under  the  Federal  Constitution,  is  there- 
fore beyond  the  power  of  the  states.  It  is  a  power  which  can 
be  used  for  the  arbitrarj^  spoliation  of  creditors,  but  a  reason- 
able bankruptcy  law  does  not  cease  to  be  reasonable  because 
it  operates  upon  existing  contracts.  This  is  therefore  a  species 
of  retrospective  legislation  which  is  sanctioned  by  custom, 
and  should  not  be  regarded  as  taking  property  without  due 
process  of  law.  The  Bankruptcy  acts  of  the  United  States 
have  always,  without  question,  been  conceded  retroactive  oper- 
ation although  Congress  is  forbidden  to  take  property  without 
due  process  of  law.  The  grant  of  the  power  of  l)ankruptcy 
legislation  contains  an  implied  exception  from  the  general 
limitation  of  the  fifth  amendment. 

LEGISLATION  AGAINST   CONTRACTS  PAYABLE 
IN  GOLD.     §§  308-309. 

§  308.  Statutory  provisions.— In  recent  years  several  states 
(South  Dakota,  Colorado,  Kansas,  Washington,  and  for  a  time 
Idaho),  have  enacted  measures  which  bear  upon  the  subject 
of  legal  tender.  South  Dakota"^  provides  that  it  shall  be  un- 
lawful for  any  owner  of  any  kind  of  evidence  of  indebtedness 
to  require  that  principal  or  interest  shall  be  paid  in  any  certain 
kind  of  lawful  money,  and  that  the  debt  shall  be  deemed  paid 
when  the  specified  amount,  with  legal  interest,  is  tendered  in 
any  money  that  is  full  legal  tender  for  public  or  private  debts. 
Kansas^*^  provides  that  after  the  passage  of  the  act  all  obliga- 
tions of  debt,  judgments  and  executions  stated  in  terms  of 
dollars  and  to  be  paid  in  money,  if  not  dischargeable  in  United 
States  legal  tender  notes  shall  be  payable  in  either  the  stand- 
ard silver  or  gold  coin  authorised  by  the  Congress  of  the 
United  States,  all  stipulations  in  the  contract  to  the  contrary 
notwithstanding.  There  is  hardly  any  doubt  that  the  Kansas 
statute  cannot  be  sustained  with  regard  to  contracts  payable 
in  gold  remaining  undischarged  at  the  time  of  its  enactment.-'" 

•5*  See,  also,    §  557.  36  L.  1893,  ch.  99. 

35  L.  1891,  ch.  85.  37  Bronson  v.  Rodes,  7  Wall.  229. 


294  PROTECTION    OF    DEBTOES.  .     §309 

§  309.     Constitutionality.— As  applied  to  future  contracts, 
this  legislation  has  been  held  to  be  unconstitutional  on  the 
ground  that  the  subject  is  one  upon  which   a   state  cannot 
legislate,  but  which  belongs  exclusively  to  the  general  govern- 
ment.^**^    For  this  view  some  reliance  seems  to  be  placed  upon 
the  case  of  Woodruff  v.  :\[ississippi.3»  In  that  case  the  Supreme 
Court  held  that  where  a  municipality  had  power  to  borrow 
money  and  issued  its  bonds  declaring  itself  to  be  indebted  in 
a  certain  sum  in   gold  coin,  which  sum  it  promised  to  pay 
(without  adding  again:  in   gold  coin),  a  ruling  of  the  state 
court  that  the  issue  of  such  bonds  was  ultra  vires  and  void, 
raised  a  federal  question,  and  the  Supreme  Court,  construing 
the  obligations  as  being  payable  in  currency,  held  them  to  be 
valid.     Justice  Field,  in  a  concurring  opinion,  declared  that 
an  obligation  cannot  be  held  to  be  invalid  simply  because  it 
is  payable  in  a  specific  kind  of  lawful  money  of  the  United 
States.    However,  the  question  of  the  power  of  the  state  legis- 
lature to  forbid  at  least  the  municipalities  of  the  state  to  con- 
tract other  than  currency  obligations  is  expressly  left  open  in 
the  principal  opinion. 

In  the  absence  of  conliicting  federal  rights  it  would  be  within 
the  police  power  of  the  state  to  forbid  parties  to  enter  into 
contracts  of  debt  depriving  the  debtor  of  the  right  to  pay 
whatever  may  be  legal  tender  at  the  time  of  payment,  for  if 
the  stipulation  may  reasonably  be  regarded  as  likely  to  work 
oppression,  such  an  impairment  of  the  freedom  of  contract 
would  be  justifiable.  * 

However,  tile  I'liited  States,  by  deelariiiu'  gold  coin  to  be 
money,  must  be  deenn-d  to  have  conferred  upon  iiulividmils 
not  only  the  right  to  nse  it  as  such,  but  also  llie  right  to  secure 
its  fntiii<>  possession  by  contracts  which  are  in  other  respects 
lawfnl.  And  this  right  Congn^ss  has  recognis(>(l  bv  the  act  of 
187H  niakinu'  silver  dollars  leujil  lender  "except  where  other- 
wise expressly  stipulated  in  tln'  contract.""'" 

3"  DonniH  v.  Moses,  18  WiiHh.  .'i:??,  .'H' Woodruir  v.   Mississippi,  162  U. 

■\()   I,.   K.   A.  :U)2,  52  Par.  333.     This  S.  201. 

was  not  tlic  MKiin  >,'roiinrl  (.f  Ilic  -Ic-  '"  I'Mrst  Siii'p!-   ^^''V-  ^*-"'<-   P-   l-'»2- 
rision. 


CHAPTER  XI  n. 

PROTECTION  OF  LABORERS. i 

§  310.  In  general.— The  very  large  amount  of  legislation 
which  exists  in  all  the  states  for  the  protection  of  hilx)!--  repre- 
sents different  phases  of  governmental  power  and  of  the  police 
power. 

The  establishment  of  bureaus  of  labor  statis.ties-'  does  not 
involve  any  compulsory  action  of  the  state.  Boards  of  con- 
ciliation and  arbitration  having  no  judicial  powers  (except 
perhaps  the  power  to  issue  subpoenas,  administer  oaths  and 
call  for  and  examine  books  and  papers),  exercise  merely  a 
moral  influence  unless  labor  disputes  are  voluntarily  submit- 
ted to  their  decision.  The  regulation  of  convict  labor  in  state 
prisons,^  and  of  free  labor  employed  by  the  state  itself,^  is  an 
exercise  of  the  proprietary  power,  and  the  control  which  the 
state  exercises  over  its  municipal  subdivisions  may  be  used 
to  some  extent  to  prescribe  terms  of  employment  of  labor  on 
public  works.^ 

Legislation  for  the  protection  of  labor  which  restrains  indi- 
vidual liberty  and  property  rights  falls  under  the  police  power, 
but  the  object  is  not  necessarily  an  economic  one.  The  great 
mass  of  labor  legislation  is  enacted  in  the  interest  of  health 

1  See,  also,  §  437,  448-452,  498-  nieipal  work ; ' '  prohibition  of  em- 
503    735.  p]oyment  of  aliens,  Illinois  Rev.  St. 

2  Down  to  1896  the  statutes  have  cli.  0,  Sec.  12-17.  The  constitutional 
been  collected  in  a  special  report  (iiiestions  as  to  the  power  of  the 
of  the  United  States  Commissioner  state  over  municipal  corporations  in 
of  Labor  entitled  Labor  Laws  of  the  dictating  terms  upon  which  they  or 
United  States;  see  also  Industrial  the  contractors  undertaking  public 
Commission  Report  1900,  Vol.  5.  improvements  may  employ  labor  do 

3  In  nearly  all  states,  Industrial  not  fall  within  the  scope  of  this 
Comm.  Rep.  V,  p.  162.  treatise;     see    the    somewhat    novel 

4  This  forms  the  subject  of  a  doctrine  advanced  in  People  v. 
separate  volume  of  the  Report  of  (  oler,  166  N.  Y.  1,  59  N.  E.  716, 
the  Industrial  Commission  of  1900,  52  L.  R.  A.  814,  82  Am.  St.- Rep. 
Yol^  III_  G05,  followed  in  City  of  Cleveland  v. 

5  Industrial  Comm.  Rep.  V,  p.  25.      Clements     Bros.     Construction     Co. 
0  Idaho     Constitution    article     13,      (Ohio),   65    N.   E.   885,   and   Street 

Sec.  21;  "Not  more  than  8  hours  v,  Varney  Electrical  Supply  Co. 
actual  work  shall  constitute  a  law-  (Ind.),  66  N.  E.  895.  But  see  At- 
ful  day's  work  on  all  state  and  mu-     kin  v.  Kansas,  191  U.  S.  — . 

295 


296  PBOTECTION  OF  LABOREES.  §  311 

and  safety,  and  in  factory  and  mining  regulations  we  find, 
especially  where  women  and  young  persons  are  concerned, 
provisions  to  promote  decency  and  comfort.  Laws  of  this 
character  rest  upon  a  clear  and  undisputed  title  of  public 
power. 

The  control  of  the  labor  of  children  likewise  falls  under  a 
special  head  of  the  police  power,  as  has  been  shown  before. 

ji  311.  Restriction  of  hours  of  labor  of  females.— Special 
provisions  also  I'xist  for  women.  In  adtlition  to  those  which 
look  toward  comfort  and  decency,"  prohibitions  are  found  in 
some  of  the  most  important  mining  states  against  the  employ- 
ment of  women  in  miues,'^  and  the  principal  manufacturing 
states^  restrict  the  hours  of  labor  of  women  in  manufacturing 
establishments  or  workshops,  usually  to  sixty  hours  per  week, 
or  ten  hours  per  day  with  such  increase  as  to  make  a  shorter 
day  for  Saturday.^ '^  New  York  also  forbids  night  labor  of 
women  in  factories. 

^  312.  Commonwealth  v.  Hamilton  Mfg.  Co.— The  restriction 
of  woman  lal)()i'  in  factories  to  sixty  hours  per  week  was  up- 
held by  1h(^  Supreme  Court  of  Massachusetts  in  Common- 
wealth V.  Hamilton  Manufacturing  Company,i^  perhaps  the 
earliest  decision  dealing  with  the  (juestion  of  the  valitlity  of 
labor  legislation,  ])ut  assuming  the  validity  almost  as  a  nuittor 
of  course,  without  extended  discussion  or  citation  of  authori- 
ties. "It  does  not  forbid  any  person,  firm  or  corporation  from 
enii)loying  as  many  persons,  or  as  much  labor,  as  such  person, 
liciii  or  corporation  iiia\'  <lesire;  imi'  does  it  I'orhid  any  pei-son 
to  work  as  many  lioui-s  a  <lay,  or  a  week,  as  he  chooses.  It 
merely  |n-ovides  that  in  an  employment  whicli  the  legislature 
has  evidently  deemed  to  stnno  extent  dangerous  to  health,  no 
persfni  shall  be  engaged  in  laboi-  rnoi-e  than  t<'n  honi-s  a  day 
oi-  sixty  hours  a  week.     There  can  be  no  doubt  that  such  legis- 

7  HoatH  for  f(!inulo  einploycns,  sep-  "•  IiiiluHtri;il  ('(mini.   Ifcp.  V,  p'.  30- 

iirato  toilet  ntoinH,  etc  M. 

•<  iViinsylviini!!,       ri..li!m;i,      WuhIi-  i i  TJO  Muhh.  .IM;?,  1870.    A  1:iw  lini- 

in^jtoii,    Wyoming,    West    Virginia.  iti'iK  •'"'  liours  of  labor  of  wniiicn  in 

1' MaHHarliUHPttH,       I{|io(lc       IhIiokI,  n'amifacturinjf,        in('<ii;uii(  ;i  I        mihI 

(  oniUM'ticiit,    .N'c'w    H:tiiijiMliirc,    New  mcrcantilo    (■.stal)li,sliin('nts    1o    Hixty 

JcrHcy,      \«>w      N'nrk,     l'rnnsyl%iiiii;i,  lumrs    per    week    lias    hocn    Hustaincd 

NcbniHka,  .\Ii<'liij;aM,         Virjiitii.i,  in    .NchraHka.      Wcnli.nni    v.  .State,  91 

South  Carolina,  Georgia,    Loiiisiana.  N.  W.  421,  58  L.  1{.  A.  825. 


§  313  FEMALE  EMPLOYEES.  2!)7 

lation  may  be  maintained  either  as  a  health  oi-  j)olice  regula- 
tion, if  it  were  necessary  to  resort  to  either  of  those  sources 
of  power.  This  principle  has  been  so  fr('((uently  recognised 
in  this  commonwealth  that  reference  to  the  decisions  is  un- 
necessary. It  is  also  said  that  the  law  violates  the  right  of 
Mary  Shirley  to  labor  in  accordance  with  her  own  judgnu'ut 
as  to  the  number  of  hours  she  shall  work.  The  obvious  and 
conclusive  reply  to  this  is  that  the  law  does  not  limit  her  riglit 
to  labor  as  many  hours  per  day  or  per  week  as  she  may  de- 
sire ;  it  does  not  in  terms  forbid  her  laboring  in  any  particular 
business  or  occupation  as  many  hours  per  day  or  per  week 
as  she  may  desire ;  it  merely  prohibits  her  being  employed 
continuously  in  the  same  service  more  than  a  certain  number 
of  hours  per  day  or  week,  which  is  so  clearly  within  the 
power  of  the  legislature  that  it  becomes  unnecessary  to  in- 
quire whether  it  is  a  matter  of  grievance  of  which  the  defend- 
ant has  a  right  to  complain."  The  passage  quoted  points  to 
the  distinction  between  direct  restraint  of  the  laborer,  and 
indirect  restraint  operating  through  prohibitions  placed  upon 
the  employer.  As  a  matter  of  policy  the  latter  method  is  more 
easily  enforced,  and  therefore  preferred ;  but  as  a  matter  of 
power  both  methods  must  be  valid  alike ;  since  the  legislature 
may  not  do  indirectly  what  it  may  not  do  directly.  It  nuist 
be  assumed  that  women  were  to  be  limited  with  regard  to  the 
time  of  their  work  in  factories,  and  it  would  be  strange  if  the 
law  allowed  an  unlimited  number  of  hours  provided  it  were 
distributed  between  different  factories.  The  decision  should, 
therefore,  be  interpreted  as  meaning  that  the  legislation  was 
intended  to  be  confined  to  factory  work,  leaving  the  question 
open  whether  the  legislative  power  extends  to  the  restriction 
of  private  work  or  occupation.  Such  a  restriction  would 
raise  the  problem  of  the  power  to  interfere  with  private  con- 
duct. 

§  313.  Ritchie  v.  People.— In  Illinois  a  statute  was  enacted 
in  1893  providing  that  "no  female  shall  be  employed  in  any 
factory  or  workshop  more  than  8  hours  in  any  one  day,  or  48 
hours  in  any  one  week."  The  provision  was  declared  uncon- 
stitutional partly  upon  the  ground  that  there  was  an  arbitrary 
discrimination  between  manufacturers  and  merchants,  partly 
on  the  ground  that  there  was  such  discrimination  against 
women,  partly  on  the  ground  that  the  right  of  contracting  was 


298  PKOTECTION  OF  LABORERS.  §  314 

both  liberty  aud  property  under  the  constitution,  and  that 
the  right  to  labor  and  employ  labor  and  make  contracts  in 
respect  thereto,  upon  such  terms  as  may  be  agreed  upon  be- 
tween the  parties,  is  included  in  the  constitutional  guaranty 
that  no  person  shall  be  deprived  of  life,  liberty  or  property 
without  due  process  of  law.  that  the  limitation  upon  this 
right  must  in  every  case  be  based  upon  some  special  condi- 
tion, and  not  on  the  absolute  right  of  control,  and  that  there 
is  no  reasonable  ground  for  fixing  upon  eight  hours  a  day  as 
the  limit  within  which  woman  can  work  without  injury  to 
her  physique  and  beyond  which  if  she  Avork  injury  will  neces- 
sarily follow.^-  The  case  of  Commonwealth  v.  Hamilton  ]\Ianu- 
facturing  Company  was  said  not  to  l)e  in  line  with  the  current 
of  authority. 

The  opinion  in  Kitchie  v.  People  can  hardly  command  un- 
qualified assent  either  in  the  light  of  reason  or  authority.  The 
statement  that  the  IMassachusetts  decision  is  not  in  line  with 
the  current  of  authority  is  unwarranted,  for  the  right  to  re- 
strict the  labor  of  women  in  factories  had  not  been  passed  upon 
by  other  courts  of  last  re.sort,  and  the  precedent  of  ]\Iassa- 
chusetts  has  on  the  contrary  furnished  the  authority  for  simi- 
lar legislation  in  a  number  of  other  states.  The  limitation  of 
till'  law  to  factories  i*;  not  in  itself  unconstitutional  discrim- 
ination; the  hnv  of  Illinois  forbids  women  l.-ibor  in  mines,  and 
tile  work  in  factories  and  w<trkshoi)s  is  as  different  from  that 
in  mercantile  establishments  or  in  domestic  service  as  that 
in  mines  is  from  eithei';'"'  all  civilised  nuumfacturing  states 
have  factory  legislation  and  lliiis  recognise  the  existence  of 
s[)ecial  conditions  of  laboi-  in  factories.  Still  less  is  the  singling 
ont  of  women  in  the  matter  of  factory  work  an  arbitrary  dis- 
crimination. It  is  not  by  the  iisserti<»n  of  vague  principles  of 
libertx',  oi'  liy  the  iinqinililii'd  deiniiicijit  ion  uf  cl.-iss  legisla- 
tion. lliJit    thi'   limits  (>r  the   police   [)()\vef  e;iii   he  delci'mined. 

ij  314.  Question  whether  measure  sanitary  or  social.  IT  we 
look  upon  limitation  dj"  hours  oi"  hihor  in  t";ictories  ;is  ,-i  niejisni'c 
of  physicnl  protection,  ;i  discrimiii;it  ion  hetweeii  men  ;inil 
w«)inen  c.'innot    he  conilrnnied   ;is  ;irhitr;irv.      And    if  ;in   exces- 

'- Kitrliic  V.   I'roplc,    l.'i.")  111.  '.ts(.  I  iiiplojtiicnt   which  makes  lon^  Ikjuth 

'"»  Factory    labor    iH    rliHtin^^iiiHhcil  Hpccially  (lotriinentiil;  son  Wells,  Re- 

from   nuTcaiif ilc  an<l  <liinir>Hti(',  lalmr  I'i'iit    iv'diiniiiic  Ch.'oifjcs.   p.  HI. 

I.v   the  monotonouH  cliaraftrr  cf  tho 


§  314  FEMALE  EMPLOYEES.  ojjg 

sive  number  of  hours  is  regarded  as  detrimental  to  w<>iu<-u,  it 
may  be  forbidden,  although  the  labor  of  men  remain  unregu- 
lated; for  there  may  1)('  practically  no  need  j"(»i-  legislative 
limitation  of  men's  labor  to  (say)  11  or  12  houi-s  if  that  num- 
ber is  not  as  a  rule  exceeded;  and  it  would  be  fatal  to  all' 
police  legislation  to  hold  that  it  nnist  deal  with  all  evils 
though  requiring  different  remedies  or  with  none.'^  But  if 
we  look  upon  limitation  of  hours  of  labor  as  a  measure  of  eco- 
nomic and  social  advancement,  and  if  that  principle  of  limita- 
tion be  conceded  as  legitimate,  the  discrimination  between 
men  and  women  can  no  longer  be  based  upon  considerations 
of  physical  strength,  but  must  be  justified  by  specific  economic 
and  social  conditions  of  employment  as  affected  by  difference 
of  sex. 

It  is  clear  that  some  special  provisions  regarding  women's 
labor  are  justified  by  their  greater  physical  weakness.  Their 
labor  in  mines  is  interdicted  largely  on  that  ground,  and  the 
prohibition  of  night  labor  in  factories  may  be  explained  in  like 
manner.  The  German  Trade  Code'^  prohibits  factory  work  on 
the  part  of  mothers  for  the  period  of  four  weeks  after  the 
birth  of  a  child,  and  the  Federal  Council  may  prohibit  any 
woman's  factory  labor  found  specially  detrimental  to  health. 
A  cutting  down  of  an  unreasonable  number  of  hours,  or  llie 
provision  for  intervals  of  rest,  falls  within  the  same  principle. 
But  it  may  well  be  conceded  that  the  control  of  hours  of 
labor  is  not  absolute,  and  that  the  courts  are  not  bound  to 
accept  the  plea  of  physical  necessity  as  conclusive.  If,  how- 
ever, the  limitation  of  hours  is  merely  a  measure  of  social 
advancement,  a  separate  rule  for  all  women  for  all  purposes 
hardly  represents  a  reasonable  classification,  for  in  the  eff'ort 
to  make  a  living  men  and  women  have  a  right  to  the  greatest 
possible  equality  before  the  law.  The  German  Trade  Code"' 
provides  that  women  who  attend  to  the  household  are  entitled 
to  an  extra  half  hour  for  the  midday  meal,  unless  an  hour  and 
a  half  is  given  for  the  latter;  here  we  have  a  social  measure 
justified  by  the  special  duties  of  women,  and  it  is  perhaps 
possible  that  other  cases  (apart  from  provisions  for  deceiu-y 
and  morality)  may  arise  in  which  all  women  as  distinguished 
from  all  men  are  entitled  to   distinct  consideration   or  vice 

14  Vogel  V.  Pekoe,  157  111.  339,  30         ^'-  See.  137. 
L.  E.  A.  491.  i«  Sec.  137. 


300  PROTECTION  OF  LABORERS.  §  316 

versa ;  so  the  law  may  require  time  to  be  given  to  men  to 
vote,  a  respite  from  work  in  which  women  do  not  participate ; 
but  to  establish  a  Saturday  half  holiday  for  men  only,  or  for 
women  only,  would  be  clearly  unequal  legislation. 

Applying  these  considerations  to  the  existing  statutes,  there 
seems  to  be  a  general  consensus  of  opinion  that  ten  hours 
factory  labor,  or  sixty  hours  per  week,  is  a  reasonable  maxi- 
mum for  women,  and  that  the  observance  of  that  limitation 
is  required  by  the  care  for  their  physical  welfare.^'  From  this 
it  does  not  follow  that  the  same  is  true  of  eight  hours,  or  that 
the  choice  of  hours  is  entirely  within  the  discretion  of  the 
legislature.  This  is  one  of  the  cases  in  which  reasonableness 
is  a  matter  of  degree,  to  be  determined  in  the  last  resort  by 
the  courts.  Conceding  that  eight  hours  is  not  an  unreasonably 
short  day,  yet  it  is  generally  recognised  that  the  eight  hour 
day  is  not  a  requirement  of  the  public  health,  but  is  desired 
as  a  measure  to  raise  the  social  and  economic  standard  of  the 
working  classes.^ '^  In  that  aspect  women  are  not  entitled  to 
a  preference  over  men.  This  last  consideration  seems  sufficient 
to  support  the  decision  of  the  Supreme  Court  of  Illinois,  with- 
out an  endorsement  of  all  that  was  said  with  reference  to  the 
constitutional  right  to  contract  and  legislative  control  over  it. 

^315.  Legislation  for  adult  laborers.— In  turning  to  the 
legislation  I'oi-  the  protection  of  adult  laborers  irrespective  of 
sex,  we  may  classify  it  as  relating  to  the  following  subjects: 
hours  of  labor,  rates  of  wages,  time  of  payment,  form  of  pay, 
imposed  conditions  and  iicnalties,  coercion,  discharge  and 
cb^arance  cards,  l)lacl\-listing,  and  employment  brokerage  or  in- 
telligence offices. 

?;  316.  Hours  of  labor.'"  — Wii ere  the  law  fixes  upon  a  cer- 
tain nnnilx'i-  of  hours  ;is  ;i  (hi\'s  w(U"k,  hut  allows  special  con- 
tracts I'oi'  .-nhlit  ional  work,  llierc  is  sini|)ly  a  ruh'  of  inlerpre- 
tation  and  n(»l  a  police  fc<^>-ul;it idn.  Wlici-c  the  hiw  aih)ws 
ovcrwoi'k  for  an  extra  c(iiii|(cns;i1  i<ui  l)y  agreement-"  Ihe  courts 
imply  yt-ry  readily  an  agfecin.nl  on  the  |);irt  of  the  laborer 
to  work  for  the  usual  lime,  if  tli;il  is  more  lluin  the  legal  time, 

' '  .A    (in  iKnir    limit     ("n-    woiiirn    is  "i  l{(i|„irt    nf    Indusl  iImI   Cniniii.   V, 

HiiHtaiiifd    in    Xchrjiskii.     Wcnlijuii    v.  :'(i-.'5<). 
.•^late,  91  N.  W.  4l.'l.  r.H  !,.  U.  A.  KL'.'i.  -•"  lri.li;ni:i      Statutes      1894,     Soc. 

>"  WpDh  Rfcont  Ecotuimic  ciianjicH,  TO.TJ ;     New    York    Laws,    1892,    ch. 

p.  438.  711. 


!5  316  HOUKS  OF  LABOR. 


:iui 


and  to  accept  the  stipulated  wages  as  including  tiie  extra  (-(.in- 
pensation.2i  A  police  regulation  exists  if  there  is  an  obliga- 
tion to  pay  for  work  overtime  special  compensation  ix-rliaps 
at  a  special  rate,22  or  where  the  law  establishes  an  al)s()lute 
limitation,  the  violation  of  which  is  punishal)lc  and  which  can- 
not be  waived  by  the  employee  so  that  he  cainiot  recover  I'.u' 
overtime.2^  The  cases  in  which  such  limitation  has  been  cre- 
ated so  as  to  apply  to  adults  are  as  yet  exceptional,  and  they 
relate  chiefly  to  occupations  of  a  special  character.  Some  of 
these  laws  can  be  justified  on  the  ground  of  public  safety,  so 
the  rule  found  in  many  states  that  railroad  employees  ope- 
rating trains  or  cars  shall  not  work  more  than  a  stated  number 
of  hours,24  especially  where  the  prohibition  is  direeted 
against  overwork  which  may  incapacitate  the  employee  and 
result  in  disaster;  so  in  New  York  and  Michigan  where  (Mght 
hours  of  rest  is  prescribed  after  twenty-four  hours  of  work. 
Considerations  of  public  safety  may  also  support  the  provision 
of  a  maximum  number  of  hours  for  pharmacists  and  drug 
clerks.25  But  where  the  time  for  all  street  railroad  employees 
is  fixed  at  ten  hours  per  day,  with  right  to  work  overtime  for 
special  compensation,^^  the  justification  on  the  ground  of  pub- 
lic safety  evidently  fails.  If  safety  or  health  really  foi-bid 
excessive  work,  special  compensation  does  not  remove  tlie 
objection,  and  the  fact  that  it  is  allowed  indicates  that  the 
restriction  rests  on  economic  grounds. 

Hours  of  labor  have  besides  been  limited  for  persons  em- 
ployed in  a  number  of  other  special  occupations,  notably  for 
miners,2^   for  operatives   in  cotton  and    woolen    mills,-'^    em- 

21  Helphenstine  v.  Hartig,  5  Grif-  -*  In  England  it  took  many  years 
fiths  Ind.  App.  172;  Grisell  v.  Noel  before  a  limitation  of  twelve  hours 
Brothers,  etc.,  Co.,  9  Ind.  App.  251,  in  the  railway  service  was  secured, 
36  N.  E.  452;  Bartlett  v.  Grand  and  the  prevention  of  accidents  was 
Rapids  Street  R.  Co.,  82  Mich.  658;  the  controlling  consideration  which 
People  V,  Phyfe,  136  N.  Y.  554;  induced  the  result ;  Roscher  III,  923. 
Christian  County  v.  Merrigan,  191  ^r.  New  York  Laws,  1900,  ch.  453. 
111.  484,  61  N.  E.  479.                                    -"  New  York,  Ohio,   Pennsylvania. 

22  Low  V.  Rees  Printing  Co.,  41  27  in  Utah  and  Colorado  eight 
Neb.  127.  hours  per  day. 

23  Short  v.  Bullion,  etc.,  Co.,  20  28  Georgia,  South  Carolina,  G6 
Utah,  20,  57  Pac.  720,  45  L.  R.  A.  hours  per  week;  Maryland,  rc- 
603 ;  see  also  Re  Ten  Hour  Law  (Op.  stricted  to  manufacturing  corpora- 
Just.  R.  I.),  54  Atl.  602.  tions  or  companies. 


302  PEOTECTION  OF  LABORERS.  §  317 

ployees  on  brick  yards,^^  and  bakers. ^o  In  Nebraska  an  eight- 
hour  day^^  was  established  for  all  classes  of  mechanics,  serv- 
ants and  laborers,  excepting  those  engaged  in  farm  or  domestic 
labor,  but  was  declared  unconstitntional.^^- 

§  317.  Question  of  constitutionality.— If  these  limitations 
can  be  regarded  as  sanitary  measures  required  by  the  physical 
well-being  of  those  employed  in  the  occupations  specified,  they 
belong  to  a  well  established  head  of  the  police  power,  but 
even  a  legislative  statement  of  the  purpose  of  protecting  health 
would  not  be  conclusive  of  their  character.  But  the  laAvs  as 
a  rule  do  not  state  the  purpose  of  the  limitation.  The  pro- 
vision for  an  eight-hour's  day  in  mines  and  smelting  works 
by  tlu'  legislation  of  Utah  has  been  upheld  by  Ihe  Supreme 
Court  of  the  United  States  as  an  exercise  of  the  police  power 
for  the  health  of  miners,-^-^  while  the  Supreme  Court  of  Colo- 
rado has  declared  a  similar  statute  to  be  unconstitutional, 
even  if  intended  for  the  benefit  of  health. =^^ 

Tbe  Supreme  Court  of  the  United  States  declined  to  discuss 
lln-  (pu'stion  whether  tb(;  legislature  had  the  i)ower  to  lix 
Imiii-s  of  labor  in  other  employments  than  those  detrimental 
to  hcaltii.  and  intinmted  tlnil  llic  ;iulli()i'it ics  holding  state 
statutes  restricting  the  hours  of  l;il)(>r  to  \)c  unconstitutional, 
li;i(l  no  application  to  cases  where  the  legislature  h.id  adjudged 
iliat  a  limitation  was  necessary  foi-  Ihe  pfcservation  of  the 
health  of  <'mpl()yees. 

'I'licrc  is  no  decision  of  a  court  of  last  resort  upon  the  valid- 
ily  of  the  statutes  restricting  the  hours  of  la])or  of  adult  cot- 
ton or  wool  operatives  or  hiicU  yard  employees.  Il  is  also 
diflieult  to  say  whethei*  their  purpose  is  sanitary  oi'  social 
oc  economic.  As  to  hakers  the  slatnlory  liniilation  has  been 
nplK'l'l  in  New  ^'ork,•■•'■  while  in  ('alironiia  an  ordinance  i-e- 
(piii'ing  the  cessation  of  laln»i'  iVoni  Satnnlay  eveniiiL;-  to  Suii- 
ilay  Miornin;,'-  was  hi'ld  to  lir  nncdiist  it  nl  iona  I  (liscriniinal  ion. 
the  eonrt   taking  juilicial  not  i< t'  the  fact    that    the  conditions 

^•' New    V.iik,    It)  liuiii-H.  »■■•  lloM.ii  V.  Ii;(i<lv.   Ki'.i  I'.  S.  IWiC). 

3"  New    Viirk,    Now   .lorHoy.    I'ciiie  •'•  l.'i'    Mur^riiii,    LTi    Cdlo.     tl."i,    47 

Hvlvaiiiii  :iii<l  .MiHHoiiri.  I,.     I.'.     .\.    ."ij.       .Mso    in     Iv'c     I'li^jlit 

•■■•'  With     ri^lit     to    iiiiTcjiHcil  coni        Hour  liill.  L' I   >'<<]<>.  •.';».  ;',!•   i'.-u-.  .'IL'S. 
prriMition    for  overwork.  '•'•'  t'coplr    v.     I,(ii  liner,    7(i    N.    Y. 

«2  I.iawH  1801,  ch.  r)4;  Low  v.  Rtrs  Snpp.  :t!t().  7.'!  Ap)..  Div.  120.  .W- 
Printing  Co.,  41    Nol).   l'J7.  (iini.'.l.  C'.i  ,\.  |;.  .•;7;!. 


§  318  RATES  OF  WAGES.  3q;^ 

of  work  iu  bakeries  were  not  specially  unsanitary.'"'  TIk-  X.-- 
braska  law,  which  was  more  general  in  its  scope  than  any 
other,  was  declared  unconstitutional,  partly  as  niakinj^  an  un- 
justifiable discrimination  between  dift'crcnt  classes  of  labor 
(by  the  exception  of  farm  and  domestic  labor),  partly  as  taking' 
property  and  liberty  without  due  process  of  law.-'"  It  seems 
very  clear  that  the  Nebraska  law  was  not  necessary  for  the 
public  health,  but  was  purely  and  simply  a  measure  of  an 
economic  and  social  character.  From  its  sweeping  condennia- 
tion  it  may  be  inferred  that  the  Supreme  Court  of  Nebraska 
regards  the  limitation  of  hours  of  labor,  unless  recjuired  by 
safety  or  health,  as  in  the  case  of  womeUj^***  as  inconsistent 
with  personal  liberty  and,  therefore,  as  beyond  legislative 
power.  The  whole  question  of  hours  of  labor  must,  from  the 
point  of  view  of  authority,  be  regarded  as  still  unsettled,  but 
in  principle  a  limitation  which  is  neither  unreasonable  nor 
discriminative  should  be  held  to  be  a  legitimate  exercise  of  the 
police  power. 

§  318.  Rate  of  wages.— The  power  to  regulate  the  rate  of 
wages,  .while  freely  exercised  in  former  times,-^''  has  not  been 
claimed  by  any  American  state.  The  constitution  of  Louisiana 
provides  expressly,^'*  "no  law  shall  be  passed  fixing  the  price 
of  manual  labor."  In  principle  it  would  make  no  difference 
whether  the  rate  fixed  by  law  were  intended  to  be  a  minimum 
or  a  maximum  rate.  Considerations  of  health  and  .safety 
which  complicate  the  question  of  hours  of  labor  do  not  enter 
into  the  question  of  rates.  The  regulation  would  be  purely 
of  an  economic  character.  It  would  be  closely  analogous  to 
the  regulation  of  the  price  of  other  connnodities  or  services. 
The  power  to  regulate  charges  in  general  will  be  discussed  in 
another  connection;  the  power  to  regulate  wages  of  labor, 
even  if  it  can  be  exercised  with  due  regard  for  the  principle  of 
equality,  would  undoubtedly  be  resisted  by  a  strong  current 

36  Yet  a  writer  on  hygiene  says,  38  Wenliain  v.  State,  91  X.  W. 
' '  That  the  labor  in  bakehouses  is  421,  58  L.  li.  A.  825. 
very  damaging  to  health  and  short-  ■''.»  Under  5  Elizabeth,  eh.  4,  jus- 
ens  life  is  well  known  to  the  trade. ' '  tices  of  the  peace  were  empowereil 
J.  T.  Arlidge,  Hygiene,  Diseases  and  to  fix  the  wages  of  hiborers;  this 
Mortality  of  Occupations,  London,  hiw  after  long  disuse  was  abrogated 
1892.  by  53  George  III,  ch.  40. 

■■••"  Low  V.  Rees  Printing  Company,  *o  See.  49. 
41  Neb.  127. 


304  PROTECTION  OF  LABORERS.  §  319 

of  judicial  opinion :  Init  the  question  need  not  be  discussed  in 
the  absence  of  legislation  raising  it. 

;j  319.  Payment  of  wages.— Two  classes  of  provisions  re- 
lating to  the  payment  of  wages  may  be  distinguished :  the  one 
requiring  payment  at  stated  times  or  intervals,  weekly, 
monthly  or  semi-monthly ;  the  other,  requiring  the  payment 
of  wages  in  cash. 

The  object  of  the  former  class  of  statutes  is  to  enable  the 
workman  to  pay  cash  for  his  supplies  and  to  protect  him  from 
the  disadvantages  of  purchasing  on  credit.  They  apply  either 
to  all  employers,"*^  or  to  all  corporations  or  business  corpora- 
tions,"*- or  to  all  corporations  with  specified  exceptions,"* ^  or 
to  specified  classes  of  corporations  or  employers,"*-*  or  to  miners 
and  manufacturers,"*^  or  to  coal  mining  companies  only."*'"' 
Legislation  of  this  kind  seems  to  be  uncommon  in  other  eoun-. 
tries."*" 

Statutes  of  the  second  class,  often  known  as  store  order  or 
truck  acts,  are  directed  against  the  evils  of  the  so-called  truck 
system,  under  Avhich  the  employing  firm  or  company,  being 
interested  in  a  store  which  it  desires  its  employees  to  patronise, 
pays  them  their  wages  in  the  form  of  orders  or  checks  good  for 
merchandise  upon  which  the  employer  makes  a  profit.  The 
truck  system  is  old."*'*  and  was  dealt  Avilli  by  earlier  English 
statutes  consolidated  in  1831."*'-*  In  P^nglantl  an  exception  from 
the  prohibition  of  truck  is  made  in  payment  of  medical  serv- 
ices, fuel,  infills  at  llic  place  of  employment,  and  benefit  assess- 
ments. The  Gernuin  Tratle  Code^"  forbids  tnicU  itaymciit  willi 
simihii'  exceptions:  it  also  prohiliits  payment    in   places  wliei'e 

<' Ohii),     Iiidianu;     in     JMassachu-  torney's  fee  and  an  additional   sum 

HcttH  to  all  (>riii)Ioy<'rs  of  'J;")  or  more.  l)y   way  of  poiialty  aji^ainsl    llu-  I'ni- 

<2  Connccticnt,      California,      Kan-  jdoyor;      (MasHacliusottH,     Arl<aiisiiH, 

has,  New  TlaniiiHliirc,   Kliodc   lHlan<l.  Sontli  Carolina)  ;  als(t  the  lejjislation 

■••''  N'r-w  Vork.  proiiihitiiij;  tlie  assi<^ninent  of  future 

<<  lllinriiH,   Maine.  wajjes  which   was  unstained   in    Imli- 

♦s  VVeHt  Virginia,   New  JerHey.  ana     in      Internationa!     Text      I'xink 

^J  Iowa,  Wyoniinj^.  ('oni|i!iiiy    v.    Weissinper,    (!.")    \.     !•]. 

*7  Somewhat   rehifed    to    tiiis   lej^iH-  ^t'2^. 

h:tion  are  the  statutes  reqnirinj;  the  ■•'•ll    was    prnhiliitrd     in     l",ii;,d.ind 

payment  of  the  aeorued   wajjes  of  a  lor  <dotli  nuikers  in   IKil;  In  (Icrnian 

diHeharyed    laborer,    at    th<'    lime    of  iiininjf  districts  in   I.^OO. 

Ids     disi  harpe     without      al>atein<'nl.  '"  1   ami  2  Willi.ini   W.  eh.  .T". 

iind    givinjj    to    the    delayed    laborer  '•"  Sir.  1 1.'"). 
who  hau  to  Bue  for  his  wages  an  at- 


§  320  MODE  OF  PAYMENT  OF  WAGES.  305 

liquor  is  sold,  a  provision  also  found  in   Enjifland.  Itiit   not    in 
American  statutes. 

Tlie  statutes  found  in  many  of  the  American  states  either 
forbid  the  employer  to  be  interested  in  a  truck  store,  or  to 
control  any  scheme  for  the  furnishinji:  of  supplies,  tools,  cloth- 
ing, provisions  or  groceries  to  his  employees,  or  they  forbid 
deductions  from  wages  for  goods  furnished,  or  they  prohibit 
the  issue,  in  payment  of  wages,  of  any  check,  eard  or 
other  paper  not  redeemable  at  its  face  value  in  lawful  money 
of  the  United  States.  Acting  contrary  to  the  prohibition 
is  punished  by  fine.  Sometimes  the  provisions  also  cover 
coercion  of  the  employee  to  buy  at  a  company  store ;'  some- 
times they  are  restricted  to  stores  in  which  the  employer  has 
an  interest.^  In  their  application  the  acts  vary  much  the  same 
as  the  weekly  payment  laws;  in  Colorado,  Kansas,  Louisiana, 
Missouri,  New  Jersey,  Ohio,  antl  West  Virginia  they  api)ly 
to  all  emploj^ers,  or  the  statutes  are  at  least  capal)le  of 
receiving  that  construction.  In  Kentucky  the  constitution-' 
prescribes  the  payment  of  wages  in  lawful  money,  but  the 
provision  is  held  not  to  apply  to  the  issue  of  checks  payable 
in  merchandise  upon  the  application  of  the  employee,  provided 
the  employer  pays  at  reasonable  intervals  so  that  the  employee 
is  not  forced  to  apply  for  advances."* 

§  320.  Judicial  decisions.— Both  classes  of  statutes  have 
been  passed  upon  by  the  courts,  and  have  been  made  the 
subject  of  much  constitutional  argument.  The  .lustiees  of 
the  Supreme  Court  of  Massachusetts  advised  the  legislature 
that  a  weekly  payment  law  applying  to  all  manufacturers 
would  be  constitutional.^  In  Rhode  Island  and  Arkansas  acts 
regarding  the  time  of  payment  of  wages  were  held  valid  in  so 
far  as  they  applied  to  corporations,  on  the  ground  that  the 
control  over  corporate  charters  extended  to  such  requirement.'*' 
while  in  California  it  was  held  unconstitutional  to  single  out 
corporations  for  that  purpose."      In  Illinois  an   ac^t   recpiiring 

1  Indiana,    Iowa,    Kansas,    Tenne-  '■  State   v.   Brown,   etc.,    Mfg.   Co., 

see.  Ife  R.  I.  16,  17  L.  R.  A.  SfiG;   Et'.'). 

^  Louisiana,  Ohio,  Kansas.  v.  St.  Louis,  etc.,  E.  Co.,  58  Ark.  407. 

?■  Sec.  244.  So,   also,   a   truck   act   in    ^[aryla^l(l. 

4  Avent-Beattyville  Coal  Company  Shaffer  v.  Union  Mining  Co.,  55  M-I. 

V.  Commonwealth,  16  Ky.  Law  Eep.  74. 
414,  28  S.  W.  502.  ".Johnson     v.     Gooilycar     Mining 

s  163  Mass.  589.  Company,  127  Cal.  4,  59  Pac.  304. 


o 


0 


306  PROTECTIOX  OF  LABORERS.  §  320 

weekly  payment  of  wages  by  every  manufacturing,  mining, 
([uarrying,  limibering,  mercantile,  street,  electric  and  elevated 
railway,  steamboat,   telegraph,   telephone   and   municipal   cor- 
poration, and  every  incorporated  express  company  and  water 
company,  was  declared  unconstitutional,  as  being  an  arbitrary 
discrimination  between  these  and  other  corporations.'*     Like- 
wise in  chief  reliance  upon  the  element  of  unlawful  discrim- 
ination the  Supreme  Court  of  Illinois  had  set  aside  a  store 
order  act  applying  to  all  mines  and  manufactories,^  while  in 
Indiana  an  act  applying  to  the  same  employments  was  upheld, 
mainly  upon  the  ground  that  it  was  within  the  power  of  the 
legislature  to   protect  the   lawful   medium  of  payment.^*^      In 
Pennsylvania   and  West  Virginia,  statutes  forbidding  miners 
and  ma^nufacturers  of  coal  or  iron  or  steel  and  other  minerals, 
and  any  other  kind  of  manufacturers,  to  pay  wages  in  ordei's 
not  redeenudile  for  face  value  in  lawful  money,  were*declared 
unconstitutional."     Another  act  of  West  Virginia  forbidding 
persons  and  corporations  engaged  in  mining  and  manufactur- 
ing, and  interested  in  selling  merchandise  and  supplies,  from 
selling  to   tlifir  employees  at  a   greater  percentage   of  pi'otit 
than  to  others  not  employed  by  Ihcni.  was  likewise  declared 
void.'-    But  in  the  same  state  in  1892  a  store  order  act  which 
applied  to  all  persons  engaged  in  trade  and  ])usiness  was  up- 
ln'id,    the    objectionable    di.scriminating    feature    having    been 
eliminated  from  this  act.'-'     In  Missouri  a  statute  forbidding 
corporations,   persons   or   lirnis  engagecl    in    manufacturing  or 
mining   to    issu«'    for    llic    |>a.\  imiil    ol'    wages    an\'    order,    etc., 
payable 'otlK'fwise   than    in    lawful    money,     unless     the     same 
should  be  negotiable  ami  rrdccniahle  at  face  value  and  withont 
discoinil    in    cash    oi-    in    goods,    wares,    merchandise    and    sup- 
plies, and  re(|Miring  the  redemption  of  such  order,  etc..  at   the 
option  of  the  holder  ill  cash,  was  first    upheld   by  one  division 
of  the   Sii|ireme  ('oiirl.   hnt    on   heiiii:   Iransferred   to   the  court 
in    l.:iiic    was   there   (|e(dai'ed    to    he    unconst  it  111  ioii;i  I    Mild    void. 


"  nraci'villc  ('(till  ('oiii|':niy   \.  I''"        l':i.    St.     i:'.l.     I  ss(i ;    Stuti-    v.    (lood- 

|,lr,    117    111.  m,  IHja  will,  :V.\   W.    V:..    17!t.    ISS'.I. 

'•  Fn.nT    V.    Proj.!.'.    Ill     III.  171.           ' -•  sijitc  v.   Fin-  Crcfk,  etc,  To.,  :^.T 

l.vjCj.  W.    V:i.    iss.    issit. 

I"  Hjiiu'ix-U     v.     Vii.liii,     IJI  111.].           I  :  I'cfl    Splint    Conl    Co.    v.    St:itc, 

:;(;(•,.    IH'.Hi.  :'.i;  W.   V:i.  MO'J,   iM'.fJ. 

i<  (JodclmrleH     \.     Wigcmaii,  li:'' 


§  321  MODE  OF  PAYMENT  OF  WAGES.  3O7 

as  arbitrary  and  pai-tial  legislation."  A  now  act  was  thorc- 
upon  passed  in  1895  npplyino-  to  all  persons,  firms  and  corpo- 
rations, and  this  later  act  does  not  appear  to  have  been  passed 
upon.  A  weekly  payment  act  without  discriminating  features 
was,  however,  held  unconstitutional  in  Indiana.^^  The  Jus- 
tices of  the  Supreme  Court  of  Colorado  intimated  to  the  lejjis- 
lature  that  a  truck  act  applying:  to  all  employees  would  be 
constitutional,! «  and  such  an  act  was  held  constitutional  in  Ten- 
nessee,i"  the  decision  being  affirmed  by  the  Supreme  Court 
of  the  United  States.'^  In  Kansas  a  store  order  act  was  held 
unconstitutional  which  was  restricted  to  corporations  and 
to  trusts  employing  ten  or  more  persons.^" 

§  321.  Constitutional  principle.— It  appears  from  these  de- 
cisions that  the  store  order  or  weekly  payment  acts  which 
have  been  declared  unconstitutional  (excepting  only  the  In- 
diana weekly  payment  act)  have  been  marked  by  some  fea- 
ture of  discrimination.  It  is  true  that  the  courts  of  Penn- 
sylvania, Illinois  and  Kansas  have  been  emphatic  in  their 
denunciation  of  the  general  principle  of  this  legislation.^'^ 
The  Supreme  Court  of  Pennsylvania  speaks  of  an  insulting 
attempt  to  put  the  laborer  under  legislative  tutelage;  the 
Illinois  court  dwells  on  the  possible  detriment  of  such  meas- 
ures to  the  workmen— a  consideration  manifestly  inconclu- 
sive, for  there  is  hardly  any  police  legislation,  which  will 
operate  beneficially  under  all  circumstances,  and  the  question 
of  wisdom  or  unwisdom  must,  within  the  limits  of  reasonable- 
ness, be  matter  of  legislative  determination ;  the  Kansas 
court  says  that  the  laborer  by  such  legislation  is  in  respect 

14  State  V.   Loomis,    115   Mo.   307,      the  wisdom  of  the  particular  method 
1893.  of  relief  a  question  for  the  legisla- 

15  Kepublic    Iron    &    Steel    Co.    v.      ture? 

State,   66   N.   E.    1005.      The   court,  i'"-  Re  Scrip.  Bill,  23  Colorado,  504. 

however,  says:     "We  do  not  assert  1^  Harbison  v.  Knoxville  Iron  Co., 

that    the    Legislature    is    powerless  103  Tenn.  421,  56  L.  R.  A.  316. 

to   regulate   the   payment    of   wages  is  Knoxville  Iron  Co.  v.  Harbison, 

when    the    same    are    paid    at    un-  183  U.  S.  13. 

reasonable  periods,  or  that  a  com-  1=' State  v.  Haun,  61  Kan.  146,  47 
munity  composed  largely  of  work-  L.  R.  A.  369,  1899. 
ingmen  may  not  be  injuriously  af-  -"  See  especially  remarks  in  Vogcl 
fected  by  unduly  delayed  payments,  v.  Pekoe,  157  Til.  339,  that  the  ele- 
for  these  questions  are  not  before  mcnt  of  discrimination  is  not  con- 
ns." Does  not  this  concede  the  prin-  trolling, 
ciple  of  the  legislation?  and  is  not 


308  PKOTECTION  OF  LABOKEES.  §  322 

to  freedom  of  contract  classed  with  the  idiot,  the  hmatic  and 
the  felon  in  the  penitentiary,  and  asks  what  right  the  legis- 
lature has  to  assume  that  one  class  has  the  need  of  protection 
against  another.  These  courts,  therefore,  hold  that  the  stat- 
ute destroys  the  constitutional  liberty  of  the  individual.  As 
an  ideal  theory  of  government  this  view  may  commend  itself 
to  some  minds,  hut  as  a  matter  of  constitutional  law  it  is 
difficult  to  see  the  difference  in  principle  between  truck  and 
usury  legislation.  If  we  do  recognise  the  legitimacy  of  the  ex- 
ercise of  the  police  power  for  the  prevention  of  oppression, 
this  legislation,  especially  store  order  acts,  sanctioned  bj'  the 
practice  of  most  civilised  countries,  is  within  the  province 
of  governmental  power.  There  is  undoubtedly  an  interference 
with  the  liberty  of  contract,  but  the  question  is  whether  such 
interference  does  not  serve  a  reasonable  object ;  to  set  up 
liberty  of  contract  as  an  absolute  right  is  to  deny  the  police 
power  almost  altogether.  The  prompt  payment  of  wages  in 
lawful  money  is  a  reasonable  incident  to  the  contract  of  em- 
ployment; if  then  the  legislature  believes  that  employees  are 
apt  to  lose  this  benefit  by  conditions  of  employment  which 
are  imposed  upon  them,  and  Avliich  they  accept  without  choice, 
it  may  make  this  recis()ual)le  incident  necessary  and  conclu- 
sive and  enforce  compliance  with  it.  The  legislature  thereby 
does  not  force  an  unsought-for  contractual  relation  upon 
unwilling  parties,  but  carries  out  the  obligation  which  it 
believes  to  be  expressive  of  the  ti'ue  spirit  of  the  contract 
into  which  Ihe  parties  have  entered  voluntarily.  Legislation 
of  this  character,  if  genei-iil  .ind  not  arbitrarily  discriminating, 
should,  therefore,  be  regartled  as  constitutional.  There  is 
no  reason  to  iissume  tbnt  the  decision  of  the  Federal  Suin-enii» 
Court  in  the  matter  of  ti-uck  legislation  will  not  l)e  followed 
ir  ;i  weekly  payment  act  shonhl  come  before  that  tribunal, 
so  tliiit  the  Fourteenth  Amendment  will  ]n'(>sent  no  obstacle 
to  legislation  of  this  cli;ir;ii'tcr. 

j  322.  Imposed  conditions  and  penalties.  — The  statutes  of 
several  st;ites-'  niiikc  it  uiiiiiwliil  \'i>v  ;iii  citiployci'  to  ex(Miipt 
liiniseir  l»y  speeinl  contract  with  an  cinidoyee  Irom  any  liabil- 
ity he  may  be  under  to  such  cmiiloyec  I'ur  injuries  suffered 
li,\    him  in  his  employment,  resulting  Irom  tin'  fmj)loyei"'s  own 

21  flpjirnin,     MuHmichuHoftH,     Monlann,  Wynmin^j. 


§  323  PENALTIES.  3Q9 

negligence  or  from  the  negligence  oi'  otlier  ])ersons  in  liis  .-ni- 
ploy,  or  to  require  from  an  employee  such  a  contract  or 
agreement  as  condition  of  employment  or  otherwise.  Colo- 
rado,^2  Montana23  and  Wyoming24  embody  this  principle  in 
their  constitutions.  Where  no  penalty  is  imposed  for  making 
or  requiring  such  contract,  the  provision  seems  to  add  nothing 
to  what  would  be  lawful  without  it;  for  the  courts  will  treat 
such  an  agreement  as  contrary  to  public  policy  and  void.^-"* 
The  contract  being  unlawful  a  prohibition  against  nuiking  it, 
enforced  by  penalties,  affords  an  additional  protection  to 
the  employee,  and  thus  may  be  looked  upon  as  a  legitimate 
l)olice  measure. 

>5  323.  Penalty  for  leaving  without  notice.— Agreements 
between  employer  and  employee,  by  which  the  former  under- 
takes to  protect  himself,  by  a  stipulation  of  penalties,  from 
injury  he  may  suffer  by  the  act  of  the  latter,  stand  on  a 
different  footing.  They  are  not  unlaAvful  at  common  law, 
and  it  has  been  held  that  a  railroad  company  may  stipulate 
for  a  penalty  of  $15.00  to  be  incurred  by  a  conductor  for 
violation  of  a  rule  against  receiving  fares  from  passengers.^^ 
The  question  is,  are  these  agrements  beyond  the  reach  of 
the  police  power  as  essential  to  the  constitutional  liberty  of 
contract?  The  most  common  stipulation  of  this  kind  seems 
to  be  that  by  which  the  employee  is  required  to  give  notice 
of  his  intention  to  leave  under  penalty  of  the  forfeiture  of 
a  stated  amount  of  his  wages.  Stipulations  of  this  kind  are 
forbidden  in  Connecticut,  and  it  is  provided  in  Massachusetts, 
Rhode  Island,  New  Jersey  and  Pennsylvania  that  in  case  of 
such  a  stipulation  the  employer  shall  be  subject  to  a  i)enalty 
of  a  corresponding  amount  if  he  discharges  the  employee 
without  giving  him  like  notice,  unless-^  such  discliarge  is  jus- 
tified by  a  general  suspension  of  work  on  the  part  of  other 
employees.  It  has  been  held  in  Connecticut  that  this  ju-ohi- 
bition  does  not  apply  where  the  agreement  is  mutual,-^  and 
the  question  is  left  open  whether  the  prohibition  of  mutual 

22  Art.  15,  §  15.  ^«Birdsall  v.  Twenty-third  St.   R. 

23  Art.  15,  §  16.  Co.,  8  Daly   (N.  Y.)  41S>. 

24  Art.  19,  §  1.  27  New  Jersey  and  Pennsylvania. 

25  Lake    Shore,    etc.,     E.     Co.    v.         28  Pierce  v.   Whittlesey,  58  Conn. 
Spengler,  44  Ohio  St.  471.     9  A.  a^id  104. 

E.  Cycl.  of  Law,  1st  edition,  p.  913. 


310  PEOTECTION  OF  LABOEEES.  §  324 

stipulations  of  that  kind  would  be  constitutional.  This  ques- 
tion does  not  arise  under  the  statutes  of  the  other  states 
mentioned,  for  they,  on  the  eontrary,  insist  on  the  mutuality 
of  the  stipulation.  In  doing  so  they  undoubtedly  interfert* 
with  the  liberty  of  contract,  for  they  add  a  stipulation  which 
the  parties  have  not  made,  and  thereby  in  effect  prohibit  or 
annul  one-sided  stii)nlations.  Such  legislation,  however,  is 
justifiable  on  the  principle  above  explained  that  for  the  pre- 
vention of  opj)ression  the  ol)ligations  of  a  contract  may  be 
defined  by  ;d)solute  and   unyielding  statutory  provision. 

S  324.  Fines  for  imperfect  work.— A  law  of  Massachusetts^^* 
provided:  ".Xo  employer  shall  impose  a  fine  upon  or  with- 
hokl  the  wages,  or  any  part  of  the  wages,  of  an  employee 
engaged  in  weaving,  for  imperfections  that  nuiy  arise  dur- 
ing the  process  of  weaving;"  violation  pimishable  by  fine. 
The  act  was  declared  nnconstitutional,-^"  on  the  ground  that 
it  compelled  payment  niulcr  a  contract  of  th(^  price  for  good 
work  where  only  inferior  work  is  done,  and  was,  therefore, 
an  interference  with  the  eonstitnlional  right  to  make  reason- 
able and  proper  contracts.  Justice  Holmes  dissented  on  the 
ground  that  if  operatives  were  often  cheated  out  of  a  part 
of  their  wages  under  a  false  pretense  of  imperfections  of  the 
work,  the  legislatui-e  had  poAver  to  dejn'ive  employers  of  an 
h(»nest  tool  liable  to  be  used  for  a  dishonest  purpose,  and 
leave  them  to  an  action  for  damages.  Perhaps  the  safest 
iZTouM"!  ii|niii  w  liicli  Id  Uphold  the  decision  is,  that  the  act  com- 
pelled, iiiidef  ;i  penalty,  the  employer  to  ]iei'form  liis  part 
ol'  ihf  (M)iitiMct  wlii'ii  the  employee  bad  not  perroriiie(|  iiis. 
.\  "s  I'et'iisjd  to  perl'driii  a  eontrael  with  \\  eaniiot  i)e  declared 
wrongt'nl  withont  rid'ci-ciiee  to  the  (piestion  whethei"  U  is 
i-ntitled  t(»  p<i  ronnanee,  and  that  is  a  jndieial  (lueslion  which 
the  legislat  ni'r  may  not  prejudge,  it  wonM  have  been  dil'l'er- 
•  •nt  if  the  ell'ect  i)\'  the  slatnte  had  been  merely  to  |»roliii)it 
the  lining  of  tln'  employee,  and  the  pi'e\ailing  opiiiioii  inti- 
mates lliat  in  that  ease  the  statute  wnidd  have  heen  con- 
stitutional: for  ill  iiii|((isiii^-  a  liin'  the  eiiiplovei-  assumes  to 
art  as  a  judge  where  he  is  a  party.  In  e()iise(|iieiiee  di"  tin- 
•b'cision  ill  ( 'nmmniiwcalt  h  \\  rnry  the  law  was  changed  so 
ns  to   proviije   that    im|)i'rfi'(d  ions   in    WfU'k    must    be  exhil)ile<l 

2»LuwH  ISKl,  (1).  112.'3.  loCommonwciiltli     v.     Perry,     l.W 

Mmhh.   117. 


§  325  COERCIOiN  BY  EMPLO\  JOR.  -^n 

and  pointed  out  to  the  weaver,  and  tiie  amount  of  fines  be 
agreed  upon  by  liim  and  the  employer;  the  fine  is  under  these 
conditions  no  longer  a  fine  and  the  pi-ovision  seems  unob- 
jectionable.-" 

S  325.  Coercion  to  influence  or  prevent  the  exercise  of  po- 
litical rights.  — The  law  of  Massachusetts-'-  ])unishes  by  impi-is- 
oiiment  ;iiiy  one  who  by  threatening-  to  discharge  a  person  from 
his  employment  or  to  reduce  his  wages,  or  by  promising  to 
give  him  employment  at  higher  wages,  attempts  to  influence  a 
voter  to  give  or  to  withhold  his  vote  at  an  election,  or  any  one 
who  ''because  of  the  giving  or  withholding  of  a  vote  at  an  elec- 
tion discharges  a  person  from  his  employment  or  reduces  his 
wages."  Provisions  having  the  same  object  in  view  exist  in  a 
majority  of  states,-'^-'  but  some  statutes  are  more  specific ;  so 
New  Jersey  requires,  in  order  to  make  the  act  illegal, 
duress,  constraint,  or  improper  influence,  or  fraudulent  or 
improper  devices,  contrivances,  or  schemes.  New  York,  ]\Ion- 
tana,  Utah,  Tennessee,  California,  Missouri,  Connecticut, 
South  Dakota  and  some  other  states  forbid  the  use  of  pay 
envelopes  with  political  devices  containing  threats,  express 
or  implied,  and  also  forbid,  within  ninety  days  of  a  general 
^  election,  the  exhibition,  in  an  industrial  establishment,  of 
hand  bills  or  placards  containing  any  threat,  notice  or  infor- 
mation of  the  character  prohibited  in  the  Massachusetts 
statute. 2^ 

The  constitutionality  of  these  statutes  does  not  appear  to 
have  been  passed  upon  by  a  court  of  last  resort.  The  free  ex- 
ercise of  the  electoral  franchise  is  undoubtedly  of  supreme 
political  interest,  and  may  be  protected  by  proper  restraints. 
At  the  same  time,  principles  of  equal  value  protect  the  liberty 
of  the  employer  from  impairment  in  certain  directions.  Thus 
the  employer  cannot  be  forbidden  to  discharge  employees  not 
under  time  contracts,  and  his  liberty  in  that  respect  is  not 
consistent  with  an  inquiry  into  motives.  .Moreover,  the  em- 
])loyer  must  have  the  privilege  of  a  citizen  to  nuike  his  po- 
litical opinions  known  and  to  work  for  their  success.  Hut 
this  does  not  imply  unrestricted  liberty  ns  to  conditions  and 
•noans.     While  he  is  owner  of  his  establishment,  bis  property 

31  Rev.   Laws,   ch.    106,   Sec.   64.  33  Rep.  Tndust.  Comm.   V,  DO. 

32Eev.  Laws,  cb.  11,  §  414.  34  See  N.  Y.  Peual  Code,  §  4l8. 


312  PROTECTION  OF  LABORERS.  §  326 

in  it  is  affected  with  the  interest  of  his  employees,  and  it  should 
be  within  the  power  of  the  law  to  protect  employees  from 
an  offensive  use  of  the  common  workshop,  or  of  the  employer's 
position  during  actual  employment,  for  the  purpose  of  political 
propaganda  and  agitation.  The  provisions  of  the  New  York 
law  should  be  justified  on  this  ground.  And  while  the  right 
to  discharge  cannot  be  taken  away,  a  threat  of  discharge  may 
be  looked  upon  in  a  different  light,  since  in  most  cases  it  is 
clearly  distinguishable  as  an  act  of  intimidation,  or  at  least 
of  interference,  and,  where  so  distinguishable,  it  is  by  no 
means  necessary  to  the  right  of  discharge.  The  practical 
eft'ect  of  the  law  would  be  a  prohibition  of  oft'ensive  methods 
of  electioneering  by  an  abuse  of  the  relation  between  em- 
ployer and  employee,  and  such  prohibition  should  be  within 
the  legislative  power. 

§  326.  Coercion  against  membership  in  trade  unions.— The 
labor  huv  of  ^lassachusetts  provides^-'"'  that  "no  person  shall 
himself  or  by  his  agent  coerce  or  compel  a  person  into  a  writ- 
ten or  verl)al  agreement  not  to  join  oi-  become  a  member  of 
a  labor  organisation,  as  a  condition  of  his  securing  emploj^- 
ment  or  continuing  in  the  employment  of  such  person."  Simihir 
provisions  are  found  in  Xcav  York,  New  Jersey,  Penn- 
sylvania, Ohio.  Indiana.  Illinois,  ^lissouri,  Wisconsin,  ^linne-* 
sota,  Colorado  and  California.  The  acts  of  Missouri,  Illinois 
and  Wisconsin  have  been  declared  unconstitutional.''*^  In 
these  decisions  the  law  is  treated  as  punishing  the  employer 
for  discliai'ging  his  ciiiijloycc,  aiul  if  this  is  its  necessary 
iiicaniiig.  i1  cannot  be  iiplhld,  foi-  the  law  cannot  I'orce  upon 
the  (Mii|ilnyci-  the  continuance  oT  ;i  i-elation  fi'cely  terminable 
according  to  its  tcrnis,  \\itli  an  uiMlesii-iihle  employee,  who 
would  himself  be  free  to  end  it  at  any  time.  But  again  it 
must  he  asked,  whethei-  the  l;iw  may  not  i-esjiect  the  right  1o 
discharge,  and  yi'\  pi-oteet  the  laborer's  right  of  association 
from  interrei-ence  on  the  pari  oC  llie  employer.  Altliough 
nieiiihership  in  a  union  luis  a  strong  in(lu(>nce  u]">on  the  rela- 
tion (if  llir  riiipldyee  to  Ilis  eiii | ilov (T.  it  is  not  pail  and  parcel 
i»r   it,   and    tln'    a!li'm[it    tn    hrenk    U|>    lalxu'    unions    ma\'    lliei'e- 

•■•••  Ljmvh    imh.    ill.    :,ns.   Sec.    ;i;      i.'sM     III.     i7t;,    Tis     \.     !•;.     inn?; 

Hov.  I.awH,  fh.  Kili,  8   IL'.  Slate   v.    KrciitzljLTK,    UJ    Wi.s.   .'3.30, 

.Ti.Stnto  V.  .hilow.  Ijn  Mo.  Ifi.3.  !•<»      <>()  N.  W.  1098. 
I>.    I{.    A.    -257 ;    (JillcHpir    v.    I'.n|,ir. 


§  326  MEMBERSHIP  IN  TRADE  UNIONS.  313 

fore  be  treated  as  unlawful  interference,  if  the  means  used 
for  that  purpose  do  not  constitute  the  exercise  of  a  recof^nised 
right.  A  threat  of  discharge  intended  as  intimidation  may 
or  may  not  be  justifiable  according  to  the  object  sought  t«» 
be  accomplished;  it  cannot  be  said  to  stand  on  the  same  foot- 
ing as  the  discharge  itself.  While  the  employer  cannot  b«' 
forbidden  to  protect  himself  against  a  hostile  union,  an  at- 
tempt on  his  part  to  coerce  the  laborer  to  keep  away  or  witli- 
draw  from  "any  union,"  if  understood  as  meaning  "any 
union  whatsoever,"  may  be  treated  as  exceeding  the  measure 
of  legitimate  self-defence.  Gross  forms  of  intimidation  may 
of  course  be  absolutely  forbidden.  It  would  seem  then  to  fol- 
low that  the  statutes  in  question  are  capable  of  an  interpre- 
tation under  which  they  may  be  sustained,  without  infringing 
upon  constitutional  rights,  saving  to  the  employer  all  proper 
power  of  defending  his  own  interests,  and  the  right  to  select 
his  employees,  but  preventing  him  from  using  his  position 
to  attack  and  suppress  rights  of  laborers  which  the  law  deems 
essential  to  their  welfare  and  advancement.  The  sound  prin- 
ciple of  the  distinction  is  not  destroyed  hy  the  difficulty  of 
its  application,  which  is  perhaps  not  greater  than  the  diffi- 
culty of  distinguishing  between  lawful  persuasion  and  un- 
lawful intimidation. 

As  long  as  laborers  enjoy  the  right  to  combine  for  the  pur- 
pose of  practically  coercing  employers  to  accede  to  their  de- 
mands, the  latter  cannot  be  constitutionally  forbidden  to  pro- 
tect themselves  against  the  pressure  of  such  demands  by 
counter-combinations  of  their  own.  The  Supreme  Court  of 
New  York  has  thus  recognised  the  right  of  manufacturers  to 
lock  out  all  operatives  connected  with  an  association  of  em- 
ployees, because  of  demands  of  such  association  which  it 
considered  unjust,  notwithstanding  the  existence  of  a  statute 
for  the  protection  of  labor  unions  against  coercion  or  intimi- 
dation of  their  members,  which  statute,  it  is  true,  is  not  re- 
ferred to  by  the  court  ;3'^  and  it  has  been  held  in  Pennsylvania 
that  a  combination  of  employers  to  resist  an  advance  in  wages 
determined  upon  by  an  association  of  employees,  by  refusing 
to  sell  to  any  person  who  concedes  such  advance,  is  not  an 
unlawful  conspiracy,  since  the  passage  of  the  Pennsylvania 
statute  making  it  lawful  for  employees  to  combine  to  raise 

37  Sinsheimer    v.    United    Garment    Workers,  77  Hun  215. 


314  PEOTECTION  OF  LABOKEES.  §  327 

wages  and  to  persuade  by  all  lawful  means  others  from  work- 
ing for  a  less  sum.^'*' 

§327.  Blacklisting-  and  clearance  cards.  — The  practice  of 
blacklisting,  i.  e.  nuirkiug  a  discharged  employee  as  unfit  to 
be  given  employment  elsewhere,  is  made  punishable  by  the 
statutes  of  a  number  of  states,^^  either  as  the  individual  act 
of  a  person  or  corporation,  or  in  the  aggravated  form  of  a 
concerted  system  of  a  number  of  employers.  The  consti- 
tutionality of  these  provisions  has  not  been  drawn  in  question. 
In  XeAv  York  a  civil  action  for  conspiracy  was  maintained 
for  an  agreement  not  to  employ  one  not  a  member  of  a  certain 
organisation.^*^  A  blacklisting  combination  has  some  of  the 
elements  of  the  boycott,  while  the  individual  act  may  consti- 
tute unlawful  interference.  A  notice  sent  by  one  employer  to 
another  regarding  the  cause  of  an  employee's  discharge, 
especially  if  in  response  to  an  inciuiry,  may,  however,  be  free 
from  the  objection  of  either  oppression  or  interference,  and 
in  that  case  m.ust,  if  truthful,  be  beyond  the  police  power. 
It  is,  therefore,  provided  in  most  of  these  statutes  that  the 
provision  is  not  to  be  construed  as  prohibiting  any  person 
from  giving  in  writing  to  any  other  person  to  whom  the  dis- 
charged person  has  applied  for  employment,  a  truthful  state- 
ment of  the  reasons  for  such  discharge,  if  thereunto  requested ; 
and  the  word  "blacklist"  (especially  Avhere  prohibited  by 
constitutional  provision,  as  in  ^lontana  and  Utah)  should  be 
interpreted  as  not  covering  legitimate  information  corre- 
s[)onding  to  a  privileged  communication  in  the  law  of  libel.^^ 
The  statnte  of  Missouri  forbids  especially  the  use  of  fictitious 
names,  or'  iii;irks  oi-  signs  for  l)lacklisting  i)urposes,  and  the 
(iernian  Trade  Code-*-  i)roliil)its  oiil.\-  llic  marking  of  certifi- 
cates .so  as  to  designate  the  employee  in  a  nianncr  conceakul 
from  him. 

Till'    stiiluli's    of   some    states'-'    also    |»rovi<l('    llwit    fhe    dis- 

■■'"Cotc    V.     Miirpliy,     LIO     I'.i.    St.  i!|miii  .-i  pdiiit   lu.l   Imuliiii^r  |1„.  ji^n-,.,'- 

4^0'  incut;     Firadli'y    v.    Pierson.    24    All. 

•'•<' Krport  of  [nduH.  Cnmm.  V,  141.  (!;■),   \4H   I'.i.  St.  .'502. 

*'>('iirniii   V.  flalcn,   IHli  N.  Y.  :i.1,  ii  So   hold    in   Stato  v.   JnHtiis,   H.') 

37    I.,.    H.    A.    SOL'.     A    ciiHo   involving;  Minn.   L'7!),   SS    X.   W.   T.'iO. 

an   tmrt'cmviil    not    1o   «'inpIoy    labor-  '••■' flcrfiian   TckIc  Code,  §    ]].\, 

CTH  on  Hfrikc  camo  before  Iho  roiirtH  ■••■'  Florid.-i,        (ii'ornia,         Indiana, 

ff     I'ennHyivaiiia     but     wan    rlecidcd  .Montana,  Colorado,   Kansaa. 


§  328  EMPLOYMENT    BROKER AGI'3.  315 

charged  employee  must  upon  his  request  be  furiiishfd  witli 
a  statement  of  the  reason  of  his  discharj^e.  It  is  not  easy  to 
see  what  reasonable  objection  there  can  be  to  such  a  recjuire- 
ment,  yet  it  has  been  held  unconstitutional  in  Georj^ia  on  the 
ground  that  the  public  has  no  interest  in  a  correspondence 
between  discharged  employees  and  their  late  employers  de- 
signed for  private  information,  and  that  such  requirement 
violates  the  liberty  of  silence  which  is  correlative  to  tlu; 
liberty  of  speech  secured  by  the  constitution.  It  should  be 
said  that  the  excessive  fine  of  $5,000  imposed  by  the  statute 
of  Georgia  made  it  an  unreasonable  exercise  of  the  police 
power.'*^  A  provision  such  as  existed  under  a  former  English 
law"*^  to  the  effect  that  no  one  should  be  allowed  to  employ 
a  servant  who  could  not  produce  a  clearance  card  from  a 
former  master  would  be  inconsistent  with  the  constitutional 
right  of  liberty. 

§  328.  Employment  brokerage.— Employment  agencies  or 
intelligence  offices  are  regulated  by  statute  in  a  number  of 
states,'**'  The  person  engaged  in  the  business  is  required  to 
take  out  a  license  and  often  also  to  give  a  bond ;  he  must 
keep  a  register  of  his  transactions,  and  he  is  forbidden  to 
take  pay  where  no  employment  is  procured ;  in  New  Jersey 
municipalities  are  also  authorised  to  fix  the  rates  to  be  charged. 
In  Illinois  the  constitutionality  of  this  legislation  has  been 
sustained  ■,^"  the  purpose  of  preventing  fraud  is  a  sufficient 
justification  for  the  exercise  of  the  police  power;  the  fixing 
of  rates  of  commissions  can  perhaps  be  upheld  only  if  the 
charges  forbidden  are  plainly  extortionate. 

North  Carolina,  South  Carolina  and  Georgia  have  also 
enacted  statutes  exacting  license  fees  from  emigrant  agents 
who  are  defined  in  the  statutes  as  persons  engaged  in  hiring 
laborers  in  the  state  to  be  employed  beyond  its  limits.  The 
earlier  act  of  North  Carolina  was  declared  unconstitutional 
on  the  ground  that  as  a  tax  law  it  was  not  uniform  in  opei-a- 
tion,  and  that  as  a  police  measure  it  was  invalid  on  account 

a  Wallace  v.  Georgia,  etc.,  E.  Co.,  *o  Maine,     Massachusetts,     Rliotlu 

94  Ga.  732.  Island,     Ne\v     York.     New     Jersey, 

45  5    Elizabeth,    ch.    4.     The    Ger-  Pennsylvania,  Ohio.  Wisconsin,  Miii- 

man    Trade    Code    makes    provision  nesota,       Missouri,      Colorado      aii.l 

for  clearance  books  (Arbeitsbuecher)  Louisiana. 

but    prohibits    employment    without  *'  Price  v.  People,  193  111.  114,  61 

such  only  in  case  of  minors  (§  107).  N.  E.  844. 


316  PROTECTION  OF  LABORERS.  §  329 

of  the  unreasonableness  of  the  license  fee,  there  being  no 
regulation  or  supervision  involving  any  expense,  and  the  busi- 
ness not  being  so  harmful  that  it  could  be  prohibited  alto- 
gether.^* The  statutes  of  South  Carolina  and  Georgia  and  the 
later  act  of  North  Carolina  were  held  to  be  constitutional.^'-^ 
The  validity  of  the  Georgia  act  was  also  contested  on  the 
ground  that  it  was  contrary  to  rights  secured  by  the  federal 
constitution.  The  Supreme  Court  of  the  United  States  held 
that  the  question  whether  the  license  fee  was  prohibitive 
was  not  properly  before  it,  and  considered  the  act  as  a 
measure  of  taxation.  It  held  that  the  act  did  not  restrain  the 
individual  laborer's  liberty  of  movement,  that  the  business 
was  a  proper  subject  of  regulation,  and  that  since  the  busi- 
ness was  confined  to  the  hiring  of  laborers  for  employment 
outside  of  the  state,  the  regulation  could  be  equallj^  confined 
M'ithout  unlawful  discrimination.  It  also  held  that  labor  con- 
tracts were  not  subjects  of  interstate  traffic,  therefore  the 
emigrant  agent  was  not  engaged  in  interstate  commerce,  and 
the  tax  not  a  burden  on  sucli  commerce. ■'•'* 

^  329.  Federal  legislation  for  the  protection  of  labor.— The 
power  of  Congress  to  enact  ])rotective  labor  l(>gislation  is 
limited  under  the  constitution  to  measures  incidental  to  the 
exercise  of  admiralt.y  jurisdiction,  to  the  regulation  of  inter- 
state and  foreign  commerce,  to  the  power  of  territorial  sov- 
ereignty, and  to  the  prohibition  of  slavery. 

In  cxi'cutinii  <)['  tlicsi'  powers  Congress  has  enacted  laws 
forl)i(iding  peonage,^  and  the  coolie  trade;-  laws  regulating  the 
cniploymciit  i»i"  seamen,-'  and  l;iws  cxclnding  foreign  lal)ortM-s.' 

The  IcgishirKiii  r<»i-  the  exclusion  of  foreign  bibot-  i-csls  upon 
the  sovt'i-cign  powci-  of  the  national  government  to  (h-al  with 
foreign  ;irr;iii-s  ;in<I  foreiirn  eoinmeree,  and  ils  v;ili(lity  is, 
tlierefcd'e,  beyond  (|uestion,  (piite  irrespeetive  ol'  any  liniit;;- 
lions  upon  the  police  powi'r.  "(Jiven  in  ('ongress  the  abso- 
lute power  to  oxclude  aliens,   il    iii;iy  exclude  some  and   admit 

*"  Stuff  V.  Monro,   \\:\  X.  C  (>'.>7.  •  U.  S.  Hcv.  St.  l!t'.)0,  .Wi^O,  .')r)27. 

41' Shcpi.cnl     V.     Simiptcr     County  '•:  U.    S.    Itcv.    St.    121.')H.    I21fil,    act 

OommisHiontTH,  M  On.  .'),3.'3;  State  v,  Miin-li  ;t,  isT't,  1  Sii|i|il.  p.  S(]. 
NapifT,   (Kl   S.   C.   ()0,   41    S.    K.    i:t-,  :' Title  M  U.  S.  Hev.  St. 

SfatP  V.  Hunt,  I'JO  N.  C  (iSH,    10  S.  ■«  (Jontruct    Labor    Act,     Kchrnary 

K.  liHJ.  L'ti,   18S5;   ChincHC   Excluaiou  Act  of 

f'»  WillianiH    v.    FcarH,    J7<.)    U.    S.  May   T),   1892. 
L'70. 


§  329  FEDEKAL    LEGISLATION.  ;J17 

others,   and   the   reasons   for  its  discrimination    an-   not    npcn 
to  challenge  in  the  courts."^ 

The  legislation  regarding  seamen,  however,  affects  Ameri(!an 
citizens  and  is  an  exercise  of  the  federal  |)olice  power.  Tin- 
contract  of  employment  as  a  sailor  is  suJjjeet  to  various  re- 
strictions, partly  foi-  the  restraint  of  sailors,"  partly  for  the 
restraint  of  the  master  and  others  dealing  with  the  sailor. 
Provisions  of  the  latter  character  arc:  prescribing  under 
penalty  the  form  of  agreements  or  sliipping  articles  and  their 
execution  before  a  shipping  commissioner;'  requiring  tin- 
payment  of  wages  within  two  days  from  discharge,'^  and,  if 
in  the  United  States,  in  the  presence  of  a  commissioner,''  and 
prohibiting  the  payment  of  advance  wages,  and  the  payment 
of  any  remuneration  for  shipment  to  any  but  an  authorised 
officer.^ "^  While  the  law  does  not  undertake  to  fix  rates  of 
compensation,  or  hours  of  labor,  and  in  general  rather  pre- 
scribes what  points  the  shipping  articles  must  provide  for 
than  in  what  manner  they  must  be  settled,  yet  there  is 
undoubtedly  such  an  interference  with  the  liberty  of  contract 
as  has  been  condemned  by  some  state  courts  as  unconstitu- 
tional. As  the  Supreme  Court  of  the  United  States  has 
declared  sailors  to  be  a  dependent  class  not  enjoying  the 
fulness  of  civil  status  in  their  relations  to  the  master,' ^  tin' 
argument  of  the  liberty  of  contract  would  have  no  force  as 
against  the  needs  of  protection  as  understood  by  the  legisla- 
ture ;  but  apart  from  this  consideration,  none  of  the  provi- 
sions mentioned  impairs  the  liberty  of  contract  beyond  the 
legitimate  exercise  of  the  police  power  for  the  prevention 
of  fraud  or  oppression.  The  argument  of  equality,  so  strongly 
relied  upon  by  the  state  courts  in  dealing  with  the  labor  laws, 
which  cover  only  special  classes  of  labor,  is  hardly  avaibiblr 
against  congressional  legislation  regarding  seamen,  since 
Congress  deals  with  no  other  class  of  laborers. 

5  Lees  V.  United  States,  150  U.  S.         s  Sec.  4529. 
•476.  0  Sec.  4549. 

G  Mainly  U.  S.  Rev.  St.  See.  4596,  '"  Act.  Dec.  21,  LsitS;  Patterson  v. 

4598,  to  be  treated  of  further  on.  The  Kudora,  190  U.  S.  169. 

"  United  States  Rev.  St.  Sec.  4511,  ii  Robertson    v.    Baldwin,    165    U. 

4515.  S.  275. 


CHAPTER   XIV. 

COMBINATIONS  OF  LABOREHS. 

§330.  Combinations  under  the  English  law.i— Combina- 
tions of  workmeu  for  an  advance  of  wages,  besides  beinir 
contrary  to  the  early  statutes  of  laborers  passed  in  the  time 
of  the  reign  of  Edward  III,-  were  forbidden  by  a  series  of  acts 
of  Parliament  in  the  succeeding  centuries,  partly  general  in 
their  character,^  partly  directed  against  special  trades.*  A 
general  statute  against  laborers'  combinations  was  again 
enacted  in  1800,°  and  expired  by  limitation  in  1824.  In  1824 
an  act  was  passed  declaring  that  workmen  combining  for  an 
advance  in  their  wages,  or  for  shorter  hours,  should  not  be 
liable  to  prosecution  for  conspiracy,  but  making  violence, 
threat  or  intimidation  against  employers  or  other  employees 
or  workmen,  punishable.*^  In  1825  this  was  replaced  by  an- 
other act  which  punished  all  violence,  threats,  intimidation, 
molestation  or  obstruction  directed  against  employees,  labor- 
ers, or  employers,  to  force  the  abandonment  of  work,  or  pre- 
vent the  acceptance  of  work  or  employment,  or  to  force  or 
induce  compliance  with  trade  union  rules,  or  any  alteration 
in  the  management  of  a  business,  but  which  allowed  meetings 
and  agreements  for  the  purpose  of  consulting  upon  and  deter- 
mining the  rate  of  wages,  or  hours  of  labor,  both  on  the  part 
of  employees  and  employers."  By  an  act  of  1859  it  Avas,  in 
addition,  made  lawful  peaceably  to  persuade  others  to  abstain 
from  wni'U  in  ordrr  lo  influence  the  rate  of  wages  or  hours  of 
labor. ^  In  1871  1li<'  ads  of  1825  and  of  1S5II  wci-e  i-cpealed, 
ami  t\v(i  ads  suhsl  i1  nli'ij,  one  of  wliidi  dcdarcMl  that  li'adc 
nnions  should   iidI   hf  lidd   In  br  illegal   by  reason  (d"  the   i'ad 

I  Sft'plicii,   Ili.stnry  of  tlic  ('riiniii;il  m;is(iiis;    17^0,  7  (iciir^^c*   1   Sniliitc   1, 

l^iw  Ml,  p.  'J(t.'<-'J'J7.  c.     I.'?,    ajfjiinst    .joiirnoymen    lailfirs, 

•■.■L'3   Ivl.    Ill,  -■.    I,    K'.r.O.  «.(<•.;   HOC  Steplion    Hist,  of  the  (^riin. 

a  Ho    ir.JH,    J    iin<l    :'.    IvhvanI    VI,  Law   111,20(5. 

!•.     I'),     forl)i<l<liinj     all     (•oiis|)iracif'H  ^'40  (leo.   Ill,  c.  GO. 

nnd    rovonantH    of    workmen    not    to  "  .'>  Oeo.   IV,  c.  ft.'). 

riiak<'  or  iln  tlicir  work   Iml   at   ji  ror-  "0  Ooo.   FV,  c.  129. 

fain  ((rice  ,,r  rati-.  x 'S2  Vict.  c.  M. 

•  I  fl.    :;    n.nrv    Vl,   c.    ],   a^ainsl 

318 


§  331  HISTORY.  .^i^ 

that  they  were  in  restraint  of  trade,  while  the  other  mad.- 
punishable  any  coercion  for  trade  purposes  by  personal  vi<»- 
lence,  threats,  or  molestation  or  obstruction,  by  personally 
following  about  or  watching  another,  or  hiding  his  tools." 
This  latter  act  was  again  replaced  by  another  of  1875,  which 
distinctly  declared  that  a  combination  to  do  an  act  in  further- 
ance of  a  trade  dispute  should  not  be  punishable,  if  the  act,  if 
committed  by  one  person,  would  not  be  a  crime,  but  made 
punishable  any  violence  or  intimidation  to  compel  another,  and 
also  wilful  breaches  of  contract  liable  to  cause  serious  hai-m 
to  persons  or  property.^  ^ 

The  matter  of  combinations  thus  being  constantly  affected 
by  statutes,  some  of  them  very  general  in  their  terms,  it  was 
extremely  difficult  to  ascertain  what  was  the  common  law 
upon  the  subject,  and  the  opinions  of  judges  and  writers  varied 
considerably,!  1  but  there  Avas  undoubtedly  at  all  times  a  strong 
current  of  opinion  to  the  effect  that  a  strike  constituted  a 
form  of  indictable  conspiracy  irrespective  of  statute.  This 
view  in  the  course  of  the  last  century  gradually  gave  way  to  a 
distinction  between  peaceable  combinations  and  such  as  were 
attended  by  force,  threats,  intimidation  and  obstruction. 

§  331.  Earlier  American  cases  and  statutes.— Some  very 
early  American  ctises  are  reported  in  which  the  legality  of 
laborers'  combinations  was  considered. 

In  1806  in  Philadelphia  a  number  of  shoemakers  were  con- 
victed for  combining  to  compel  other  shoemakers  to  quit  work 
to  force  an  increase  in  wages.  The  indictment  charged  threats 
and  other  injuries,  so  that  it  seems  that  it  was  a  case  of  coer- 
cion, but  the  court  dwelt  principally  upon  the  wrongfulness 
of  strikes  as  an  "artificial"  means  of  raising  wages.' - 

In  1810  a  conviction  was  obtained  in  a  similar  case  in  New 
York.  The  court  left  the  question  open  whether  a  simple 
agreement  not  to  work  except  for  certain  wages  was  a  con- 
spiracy. The  defendants  were  regarded  as  having  acted  in 
ignorance  of  the  law,  and  a  nominal  fine  was  imposed. '^ 

In  1815  in  Pittsburg  it  was  held  that  a  conspiracy  to  coerce 
an   employer  to   have  only  a  certain  description   of  persons 

«  34  and  35  Vict.  c.  31  §  32.  12  Carson    Crim.    Conspiraoios,    p. 

10  38  and  39  Vict.  c.  86.  145. 

11  See  Stephen  Hist,  of  the  Crim.  i"*  People  v.  Melvin,  L'  Wheeler  Cr. 
Law  III,  p.  209-227.  C.  262. 


320  COMBINATIONS  OF  LABOEERS.  §  331 

in  his  employ,  to  prevent  men  from  freely  exercising  their 
trade,  and  to  compel  them  to  become  members  of  a  society 
of  Avorkmen,  and  contribute  towards  it,  was  unlawful.^ ^ 

In  1821  in  Philadelphia  (at  Nisi  Prius)  Justice  Gibson  held 
that  a  conspiracy  artificially  to  depress  or  raise  wages  Avas 
unlawful,  but  that  a  combination  to  resist  a  combination  might 
be  lawful  if  its  purpose  was  merely  to  give  labor  its  due 
value.^^ 

In  1823  in  New  York  a  conviction  Avas  obtained  against 
journeymen  hatters  for  inducing,  by  threatening  to  leave  their 
work,  a  master  hatter  to  discharge  an  employee  who  was  not 
a  member  of  the  society  of  journeymen  hatters,  and  who 
worked  for  ''knocked  down"  Avages.  The  facts  of  the  case 
shoAv  that  this  Avorkman  had  been  subjected  to  a  considerable 
amount  of  molestation. ^'^ 

In  1827  in  Philadelphia  tAventy-four  journeymen  tailors 
Avere  indicted  for  a  conspiracy  to  increase  their  Avages  and 
lessen  the  profits  of  tailors,  by  quitting  Avork,  assembling  in 
the  streets,  obstructing  Avorkmen  aa^io  continued  at  Avork,  and, 
i»y  threats,  intimidation  niul  Adolence,  trying  to  induce  them 
to  (juit  Avork.  The  Recorder  charged  that  the  action  consti- 
tuted conspiracy.^" 

The  New  York  Revisers  in  1829  in  codifying  the  law  of 
conspiracy  included  in  their  definition,  conspiracies  "to  com- 
mit any  act  injurious  to  ])ublic  health,  to  i)ublic  morals,  or 
to  ti"ide  or  connnerce."'^ 

'I'his  was  held  to  co\'er  the  action  oi"  a  club  of  jt)urneynu'n 
shoemakers  in  establishing  a  ])y-law  imposing  a  fine  ui>on 
any  journeyman  who  should  makt'  a  pair  of  shoes  for  less 
lli:in  the  lixcd  price,  jind  agreeing  not  to  work  for  any  master 
employing  such  offending  journeynien.'''  The  court  took  occa- 
sion to  say  "A  conspii'.-icy  1o  r;iise  wages  oi"  jniinie\iiien  shoe- 
makers is  ;i   iii;itli'r  ol"  |)ul)lic  concci'ii  in  whii-li  llie  |»ul)lic  have 

i«  f'ordwniiHT'H        r.isf,        Carson,  v:iiii:i    in    1  SOit.     <'(>inmw.    v.    ('urrt'ii, 

f'riiri.  ('oiiH|)ir!i(i«'H,  |).   \r>0.  ',)  I'illsl).    II. '5. 

in  Com.    ex    rcl.    Clii-w    v.    (;urliHle,  i"  INdjilc    v.    TrcMinicr,    I    Wli.    Cr. 

F'.ri^,'^ltly   (Pa.)    p.   36.    A   conviction  C   It  Li. 

f(ir    a    conHpirary    to    coerce    by    Mie  '7  (laHO     of     .Joiirncyinrii     'I'jiilorH, 

HimnltaneowH  (|nittiti(i  of  work  an  em-  Car.son,  op.  cit.  j).  ir).*?. 
ployer    to    reiriHtali'    !ni    iiutunpetetit  "*  L'   Mow  St.  ji.  ()!•!!. 

workman    was    ol)tainc<|    in    I'riuiHyl-  '"  t'c'iplc  v.   Fislicr,   II   Wcml.  9. 


§  ;332  EARLY   CASES.  321 

a  deep  interest,  and  is  indictable  at  common  law.  Journey- 
men may  singly  refuse  to  work  unless  tlicir  wa{,'es  arc  ad- 
vanced, but  if  they  do  so  by  preconcert  or  association,  it 
becomes  a  conspiracy."  A  similar  combination  was  made 
the  subject  of  an  indictment  in  Massachusetts,  and  a  convic- 
tion was  obtained  in  the  lower  court.-"  The  Supreme  Court 
said  that  the  manifest  intent  of  tlic  association  was  to  induce 
all  engaged  in  the  like  work  to  join  it,  that  such  a  purpose 
was  lawful  or  unlawful  according  to  the  purpose  for  wliidi 
the  power  of  the  association  was  intended  to  be  used,  and  thai 
the  indictment  was  defective  in  failing  to  charge  an  unlawful 
purpose. 21  It  was  said  that  the  agreement  of  the  members 
of  a  temperance  society  not  to  work  for  any  one  employing  a 
non-member  might  be  laudable. 

In  New  Jersey  in  1867  it  was  held  that  a  statutory  prohibi- 
tion of  conspiracies  to  injure  trade  did  not  apply  to  a  threat 
on  the  part  of  a  number  of  employees  to  leave  unless  another 
employee  was  dismissed,  but  that  such  a  combination  was 
coercion  or  oppression  punishable  at  common  law  irrespective 
of  statute.-^  In  the  same  year  in  New  York  it  was  stated,  as 
the  result  of  an  examination  of  the  American  authorities,  that 
it  is  lawful  for  any  number  of  journeymen  to  agree  that  they 
will  not  work  below  certain  rates,  but  that  any  association 
or  combination  for  the  purpose  of  compelling  journeymen 
or  employers  to  conform  to  any  rule,  regulation  or  agree- 
ment fixing  the  rate  of  wages,  to  which  they  are  not  parties, 
by  the  imposition  of  penalties,  by  agreeing  to  quit  the  service 
of  any  employer  who  employs  a  journeyman  below  certain 
rates  unless  the  journeyman  pays  the  penalty  imposed  by  the 
combination,  or  by  menaces,  threats  or  intimidation,  violence 
or  other  unlawful  means,  is  a  conspiracy  for  Avhich  the  parties 
entering  into  it  may  be  indicted.-^ 

These  are  the  principal  of  the  earlier  American  decisions 
made  before  the  era  of  strikes  of  enormous  proportions  which 
assumed  national  importance,  and  they  bear  out  the  conclu- 
sion in  the  case  last  cited. 

§  332.     Question  of  the  legality  of  a  strike.— There  is  no 

20  Commonwealth  v.  Hunt,  That-  --  State  v.  Donaldson,  32  N.  J.  L. 
Cher  Cr.  C.  p.  609.  l-'il. 

21  Commonwealth  v.  Hunt,  4  Mete.  23  Master  Steveilores  Association 
111.  V.  Walsh,  2  Daly  1. 

21 


322  COMBINATIONS  OF  LABORERS.  §  333 

American  decision  in  which  a  simple  strike  has  been  punished 
as  a  conspiracy.  The  statement  in  People  v.  Fisher  above 
(jnoted  was  a  dictum  not  called  lor  by  the  facts  of  the  case. 
The  Suprem*^  Court  of  Pennsylvania  pointed  out  that  English 
decisions  shouhl  not  be  taken  to  conclude  the  American  law 
in  this  matter:  'There  are  indeed  a  variety  of  British  prece- 
dents of  indictments  against  journeymen  for  combining  to 
raise  their  wages;  but  it  has  been  thought  sound  policy  in 
England  to  put  this  class  of  the  eoninmnity  under  restrictions 
so  severe,  by  statutes  that  were  never  extended  to  this  country, 
that  we  ought  to  pause  before  we  adopt  their  law  of  con- 
spiracy, as  respects  artisans,  which  may  be  said  to  have  in 
some  measure  indirectly  received  its  form  from  the  pressure 
of  positive  enactment,  and  M'hich,  therefore,  may  be  entirely 
unfitted  to  the  conditions  and  habits  of  the  same  class  here.  "2-* 
The  principle  of  the  liberty  of  strikes  has  indeed  become  so 
firmly  established  through  custom  and  public  sentiment  that 
it  is  no  longer  questioned  by  any  American  court. 

In  New  York  it  was  in  1870  confirmed  by  a  statute  which 
declared  that  "the  orderly  and  peaceable  assembling  or  co- 
operation of  persons  employed  in  any  calling,  trade  or  handi- 
craft, for  the  purpose  of  obtaining  an  advance  in  the  rate 
of  wages  or  compensation,  or  of  maintaining  such  rate,  is  not 
a  eonsi)iracy."2-'5  Similar  declarations  are  to  be  found  in  the 
statutes  of  other  states.^" 

vj  333.  Intimidation  and  coercion.  Tlic  general  principle 
f)i"  the  legality  of  strikes  does  not  cover  those  forms  which  are 
niarke<l  or  aggravated  by  speei;il  cotidilions  of  wrongfulness. 
It  is  not  ni'ecss;ii'_\-  to  point  out  that  the  commission  of  actual 
violenci'  or  i-i-iinc  is  not  cxeuscd  by  the  fact  tli.il  it  happened 
iti  the  course  of  a  sti'iUe.  Hut  it  is  to  be  noted  that  a  nund)er 
of  states-'  have  made  it  a  inisdeiueanoi-  for  raili-oad  (Migineers 
or  eonduetors.  in  fuft  lirrinicr  ol"  ;i  sti-ikc  to  ;il);indon  their 
h)conio1ives  oi-  tfains  elsewliiTc  llwin  ;it  the  phiec  (»!'  destina- 
tion, 'i'he  general  right  to  (piit  woik.  wiiei-e  there  is  no 
foMtr.'ict    lor  ;i    Tixnl   liiiic.  sliouM    iioi    !)('  eousti'ued    to  justify 

2*  (,'om.    fx    r<l.    Clicw    V.    CiirliKlc  -M{(|>.    Ind.   Coiikii.    V,    \'.V2;    Oon- 

firiylitly    (l':i.;    :«■>,    IHiil,  iicctifiil.   Dclnwurc,   Kansas,   Illinois, 

■if'  IVnal  (!o<lo,  Hoc.   17'>.  M:iin<'.      Mi,sHi8si|>i>i,      New      Jersey, 

'-'"  IndiiHtr.   ('f)nim.   R('|i.    V,   \>.    \'.'>\  l'i'iiiisylv:ini:i. 
f  MinticH(it;i,     Montana,     Norlli      I  >:> 
k(.fa). 


833  INTIMIDATION  AND  COERfTOX. 


323 


the  refusal  to  carry  out  a  special  piece  of  work  or  j(»l)  whit-ii 
has  been  undertaken,  since  the  entering  upon  the  wtirU  implies 
a  contract  to  finish  it.^^  Apart  from  this  consideration  the 
abandonment  of  a  locomotive  involves  great  public  danger 
and  inconvenience,  and  may  be  made  punishable  for  that  rea- 
son, as  pointed  out  before.  In  New  York,  following  the  Eng- 
lish statute  of  1875,  this  principle  is  applied  to  all  breaches 
of  contract,  the  probable  consequence  of  which  is  to  endanger 
human  life,  or  to  cause  grievous  bodil}'  injury,  to  to  expose' 
valuable  property  to  destruction  or  serious  injury.^" 

The  most  important  check  upon  the  right  of  combination  is. 
however,  to  be  found  in  the  prohibition  of  its  use  for  thi- 
purpose  of  coercion.  The  New  York  Penal  Code  of  ISSl-"*" 
added  to  the  objects  of  a  criminal  conspiracy,  defined  in  the 
Revised  Statutes,  the  following:  "To  prevent  another  from 
exercising  a  lawful  trade  or  calling,  or  doing  any  other  lawful 
act,  by  force,  threats,  intimidation,  or  by  interfering  or  threat- 
ening to  interfere  with  tools,  implements  or  property  belong- 
ing to  or  used  by  another,  or  with  the  use  or  employment 
thereof."  The  English  legislation  of  1875  seems  to  have  been 
of  influence  in  bringing  about  this  statutory  change. 

Coercion  is  generally  directed  against  other  laborers  or 
employees,  wnth  the  object  of  making  them  join  the  com- 
bination and  quit  work  in  furtherance  of  its  purposes.  It  is 
unlawful  at  common  law  to  entice  or  induce  a  servant  to  leave 
his  employment,  and  in  a  number  of  Southern  states^^  this 
is  made  punishable  by  fine.  The  unlawfulness  of  the  act  does 
not  depend  upon  coercion,  but  is  often  said  to  require  malice. •''^ 
To  constitute  a  criminal  combination,  however,  coercion  as 
distinguished  from  persuasion  is  generally  required,  and  in 
New  Jersey  persuasion  to  join  a  combination  was  expressly 
legalised. 33  Force,  violence,  threat,  menace  and  intimidation 
are  some  of  the  words  commonly  used  to  express  the  idea  of 
coercion;  so  Pennsylvania  provides^^  that  the  legalisation  of 
combinations  shall  not  prevent  the  punishment  of  th(^  use  of 

28  Mapstrick    v.    Ramge,    9    Nebr.  Kentucky,    Mississippi,    North   Caro- 

390,  2  N.  W.  739.  Una,   South   Carolina.   Tennessee. 

2!>  Penal  Code,  Sec.  673,  32  Bowen  v.  Hall,  ISSl.  6  Q.  H.  O. 

"oSec.  168.  333;    Walker   v.    Cronin,    107    Mass. 

31  Eep.  Ind.  Comm.  V,  p.  74,  Ala-  .').5.5. 

bama,    Arkansas,    Florida,    Georgia,  '•.■!  Laws  1883,  eh.  28. 

34  Act  June  16,  1891. 


324  COMBINATIONS  OF  LABOREES.  J^  333 

force,  threats  or  menace  of  harm  to  person  or  property  to 
hinder  any  persons  who  desire  to  labor  for  their  employers 
from  so  doing;  and  the  display  of  force,  following  about,  and 
the  use  of  opprobrious  epithets  is  regarded  as  actionable. ^^  In- 
timidation has  a  somewhat  vague  meaning.  A  "request"  to 
stay  away  from  a  shop,  with  an  assurance  that  compliance 
would  command  the  protection  of  the  employees,  "but  in 
no  case  are  you  to  consider  this  as  an  intimidation,"  was  held 
to  be,  under  the  circumstances,  a  direct  threat  and  intimidation 
and  punishable  as  such.^"  Some  statutes  specify  molesta- 
tion,3"  or  persistently  following,38  as  punishable  acts.  The  well- 
known  custom  of  "picketing"  has  been  declared  unlawful 
in  ?ilassachusetts,3^  and  so  more  recently  the  threat  of  a 
strike  directed  against  an  employer  to  induce  him  to  dis- 
charge employees  refusing  to  join  the  association  in  whose 
behalf  the  threat  was  made.^'*  The  threat  of  direct  violence 
or  of  plain  forms  of  illegality  is,  therefore,  not  necessary  to 
make  a  case  of  intimidation;  the  question  is  whether  social 
pressure  resulting  from  numbers  is  sufficient  for  that  purpose. 
If  so  it  would  be  almost  impossible  to  distinguish  between 
coercion  and  organised  persuasion  such  as  comes  from  a  com- 
bination of  workingmen.  It  seems  that  in  IMassachusetts 
where  the  question  has  received  the  fullest  discussion,  mere 
organised  persuasion  is  not  unlawful,"*^  but  that  holding  forth 
the  prospect  of  a  strike  witli  incident  "trouble,"  will  be  re- 
garded as  intimidation."*-  The  New  Jersey  statute  legalising 
"persuasion"  to  join  a  combination  likewise  referred  to  organ- 
ised persuasion.  The  safer  rule  would  seem  to  be  to  recpiire 
that  to  constitute  intimidation  the  methods  of  coercion  must 
l)('  such  as  will  suggest,  and  as  ai-c  evidently  intended  to 
suggest,  something  diffcrenl  IVnin  .hkI  in  ;iddition  1(»  the  mere 
exercise  of  :i  legal  riglit  or  iiiei-c  iii(»r;il  (lisai)probation.  Co- 
at O'Neil  V.  Bcliiinii.i,  ISL'  P;i.  L':?(),  T(>:mislors  Protcctivo  TTnion,  US 
38  L.  R.  A.  38L'.  Midi.  4<»7,  412  L.   R.  A.  407. 

••«<>  Re  Doolittle  et  jil.  L'.'l  Fed.  r.44.  ••"Plant  v.  Woods,  176  Mass.  492, 

"  Delawaro    Rev.    Code,    1893,   cli.      5?     N.    K.    1011;    contra:     National 

127.  I'roloclivc      AHsocialion      of     Stc-nn 

aNf'oiinccticii)    (ifu.    St.    1MSS,    <li.       I'itliTH  v.  ("uinniiiifj,  170  N.   V.  ;U.'), 

99.  Hoc.   ir)17.  03  N.  E.  3()!». 

.lu  VoKPlalin  v.  rmntnor,  lfi7  Mass.  "  Coniinonwcaltli       v.      Hunt,      4 

9'_'.  44  N.  E.  1077.  .3;'.  L.  R.  A.  7'JL',      .Mclc  111. 
^i^ur,■     ^.u.     ■,]u,,     I',...k     V.     Riiilway  ••-'Plant    v.  Woods,  .supra. 


§  334  MALICIOUS    TXTF.T^FF.REiNCli  ^^^ 

ercion  such  as  is  used  in  labor  troubles,  whether  against 
employers  or  against  other  employees,  is  very  commonly  ac- 
companied by  this  sort  of  illegal  intimidation. 

§  334.  Malicious  interference.— Periiaps  it  is  necessary  to 
distinguish  from  this  coercion  the  use  .^f  the  i)ower  of  com- 
bination for  the  purpose  of  unlawful  or  malicious  interference. 
There  is  undoubtedly  a  current  of  opinion  Avhieh  holds  it  to 
be  unlawful  to  maliciously  injure  another,  especially  in  the 
pursuit  of  his  livelihood.  The  cases  of  malicious  injury  will 
nearly  all  be  found  to  be  cases  in  which  one  person  interferes 
with  the  relation  between  two  other  persons,  without  being 
justified  by  the  protection  of  some  legitimate  interest  of 
his  own.  A  full  discussion  and  review  of  the  law  upon  this 
subject  is  found  in  the  case  of  Allen  v.  Flood,  decided  by  the 
House  of  Lords  in  ISOS,-*"^  which  reveals  a  marked  difference 
of  opinion  upon  the  subject.  It  was  settled  in  that  case  for 
England  that  malice  by  itself  does  not  constitute  a  cause  of 
action.  Much  of  the  very  sound  objection  to  the  recognition 
of  malice  as  an  actionable  wrong,  would  disappear  if  the  idea 
of  interference  were  substituted  for  that  of  malice.  But  the 
court  expressly  left  the  question  open  whether  a  combination 
of  the  same  character  would  not  be  actionable,  and  in  a 
later  case  it  did  hold  actionable  an  interference  in  which  the 
elements  of  combination  and  threat  were  discoverable.-*^  If 
it  is  recognised  that  a  combination  for  unjustifiable  interfer- 
ence is  wrongful,  it  is  necessary  to  determine  what  interests 
will  justify  interference,  and  thus  make  it  lawful.  Applied 
to  labor  disputes  the  question  would  be:  is  a  trade  union 
justified  for  the  purpose  of  strengthening  its  organisation  to 
demand  or  insist  upon  the  discharge  or  non-employment  of 
non-union  men?  In  Commonwealth  v.  Hunt^^  such  action  was 
deemed  justifiable,  provided  the  object  of  the  society  were 
lawful,  and  the  same  view  is  strongly,  and  as  it  seems,  justly 
asserted  by  a  recent  decision  of  the  New  York  Court  of 
Appeals.^"^ 

§  335.     Constitutional  power  over  strikes.— Approaching  the 

•J3L.  E.  1898,  A.  C.  p.  1.     See  XI  454  Mete.  111. 

Harvard  Law  Eeview,  449.  40  National      Protective      Associa- 

"Qiiinn  v.  Leathern,  L.  E.   1901,  tion  of  Steam   Fitters  v.   Cuinmiug, 

A.  C.  p.  49.5.  170  N.  Y.  315,  63  N.  E.  369,  190'J. 


326  COMBINATIONS  OF  LABOEERS.  §  335 

question  of  constitutional  power,  it  should  be  noted  that  it 
has   received   liardly   any   consideration   on   the   part   of   the 
courts.     Few  mooted  points  of  law  have  been  so  elaborately 
argued  and  discussed  as  the  question  of  the  legality  of  strikes 
and    incidental    questions,    but    the    contention   has    all    been 
upon  the  common  law  or  perhaps  the  interpretation  of  stat- 
utes, and  not  upon  the  limits  of  legislative  power,  which  in  the 
cases  not  arising  under  statutes,   but  at   common   law— and 
they  are  the  great  majority,— was  not  involved.     There  is  a 
general  consensus  of  opinion  that  coercion  is  unlawful,  and 
the  validity  of  those  statutes  which  punish  coercion  in  general 
terms  has  never  been  questioned.     Even  those  who  hold  that 
such  forms  of  pressure  as  picketing  are  not  unlawful,  do  not 
intimate  that  they  regard  picketing  as  one  of  the  constitu- 
tional liberties  of  the  citizen  beyond  legislative  control.     But 
the  strike  divested   of  aggravated   features  has  come  to  be 
regarded  by  many,  rightly  or  wrongly,  as  a  legitimate  and 
indispensable  weapon  in  the  struggle  of  labor  against  capital, 
and  is  now  recognised  as  such  by  courts,  the  legislatures  and 
by  public  sentiment.    The  question  then  suggests  itself  whether 
the  right  thus  secured  should  be  treated  as  part  of  the  con- 
stitutional liberty  of  the  workman.     This  question  does  not 
easily  admit  of  an   affirmative  answer.     The   essence   of  the 
strike  is  not  the  quitting  of  the  employment,  which,  where  the 
employed  is  not  under  contract  to  serve  for  a  fixed  time,  or  to 
complete  a  certain  job,^"  nuist  be  his  constitutional  right,  but 
the  agreement  or  combination  to  quit  simultaneously  for  the 
purpose  of  obtaining  an  ulterior  object.     It  is  well  recognised 
that  an  act,  lawful   if  done  by  one,  may  become  unlawful  if 
flone  by   many,   in   ])ursuance  of  a   preconcerted  plan  jointly 
or  through  an  organisation.     The  pi-incijjle  of  the  English  act 
of  1875,  adopted  in  IMaryiiind  by  ,i  statutory  provision  lo  the 
effect    thiit    "an    agreeniint    <ii-   eonibination    by    two    or    more 
persons  to  do   oi-   procure  to   he  (ioiie,   any  act   in   contempla- 
tion oi'  t'urtherance  oi"  ;i  trade  (lis|)ut<'  hetween  employers  and 
workmen,  shall  not   he  indictable  as  a  conspiracy,  if  such  act 
committed    hy    ou'-    person    would    not    he    |(nnisha])le    as    an 
oO'ense,""*  is  therefoi'e  a  sjjccial   rule  not    in   coni'onnity  with 
the   (•f)mrnon    l;iw.      Whetlwr*  tin-   joint   iwi    is   dilferent    in    its 

«7  .MnpHtrirk     v.     Humno,    5>     Neb.  ^'*  <•(..!(.  1888,  Art.  27,  Snc.  ;n. 

.njMi,  J  N.  W.  7:i!t. 


§  336  STRIKES  AND  DISORDER.  327 

nature  from  the  individual  act,  and  whether,  if  so,  it  should 
be  treated  as  unlaAvful,  must  depend  upon  eircuuistanecs,  and 
may  be  determined  by  considerations  of  policy  within  thf 
control  of  the  legislature. 

The  element  of  coercion  and  oppression  in  particular  may 
depend  entirely  upon  numbers.  The  whole  common  law  of 
conspiracy  is  based  upon  the  theory  that  the  combination  of 
several  or  many  creates  a  danger  not  necessarily  belonginf^ 
to  the  act  of  one,  so  where  a  conspiracy  to  cheat  is  treated 
as  a  crime.  From  that  point  of  view  alone,  the  right  to 
quit  an  employment  does  not  of  necessity  imply  that  the  agree- 
ment of  many  to  quit  simultaneously  may  not  be  unlawful 
or  may  not  be  made  so  by  the  legislature. 

§  336.  Strike  as  a  source  of  disorder.— Conceding  that  the 
right  to  agree  to  quit  work,  and  to  carry  out  that  agreement 
by  concerted  action  is  not  an  absolute  constitutional  right, 
its  prohibition  might  be  defended  under  the  principles  of  the 
police  power  on  the  ground  that  the  strike,  even  if  intrinsi- 
cally free  from  acts  of  illegality,  yet  has  a  natural  and  almost 
inevitable  tendencj^  to  lead  to  acts  of  coercion  if  not  to  acts 
of  violence.  So  it  has  been  held  that  the  right  to  trade  near 
a  camp  meeting  ground  may  be  prohibited  merely  because  it 
tends  to  produce  disturbances.^*^  To  a  large  proportion  of 
strikes  may  be  applied  the  words  used  by  the  Supreme  Court 
of  Massachusetts  in  a  recent  case:  ''It  is  well  to  see  what 
is  the  meaning  of  this  threat  to  strike,  when  taken  in  connec- 
tion with  the  intimation  that  the  employer  may  'expect  trouble 
in  his  business.'  It  means  more  than  that  the  strikers  will 
cease  to  work.  That  is  only  the  preliminary  skirmish.  It 
means  that  those  Avho  have  ceased  to  work  will  by  strong, 
persistent,  and  organised  persuasion  and  social  pressure  of 
every  description  do  all  they  can  to  prevent  the  employer  from 
procuring  workmen  to  take  their  places.  It  means  much  more. 
It  means  that,  if  these  peaceful  measures  fail,  the  employer 
may  reasonably  expect  that  unlawful  physical  injury  may 
be  done  to  his  property;  that  attempts  ni  all  the  ways  prac- 
ticed by  organised  labor  Avill  be  made  to  injure  him  in  his 
business,  even  to  his  ruin,  if  possible ;  and  that  by  the  use  of 
vile   and   opprobrious   epithets   :iiid    other   annoying   conduct, 

•49  Commonwealth    v.    Bearse,    1312      567,  12  N.  E.  79. 
Mass.  542;  Meyers  v.  Baker,  120  111. 


328  COMBINATIONS  OF  LABOKEKS.  §  337 

and  actual  and  threatened  personal  violence,  attempts  "vvill 
be  made  to  intimidate  those  who  enter  or  desire  to  enter 
his  employ;  and  that  whether  or  not  all  this  be  done  by  the 
strikers  or  only  by  their  sympathisers,  or  with  the  open 
sanction  and  approval  of  the  former,  he  will  have  no  help 
from  them  in  his  efforts  to  protect  himself.  However  mild 
the  language  or  suave  the  manner  in  which  the  threat  to 
strike  is  made  under  such  circumstances  as  are  disclosed  in 
this  case,  the  employer  knows  that  he  is  in  danger  of  passing 
through  such  an  ordeal  as  that  above  described,  and  those 
who  make  the  threat  know  that  as  well  as  he  does.  Even  if 
the  intent  of  the  strikers,  so  far  as  respects  their  own  conduct 
and  influence,  be  to  discountenance  all  actual  or  threatened 
injury  to  person  or  property  or  business  except  that  which  is 
the  direct  necessary  result  of  the  interruption  of  the  work, 
and  even  if  their  connection  with  the  injurious  and  violent 
conduct  of  the  turbulent  among  them  or  of  their  sympathisers 
be  not  such  as  to  make  them  liable  criminally,  or  even  answer- 
able civilly  in  damages  to  those  who  suffer,  still,  with  full 
knowledge  of  what  is  to  be  expected,  they  give  the  signal,  and 
in  so  doing  must  be  held  to  avail  themselves  of  the  degree 
of  fear  and  dread  which  the  knowledge  of  such  consequences 
will  cause  in  the  mind  of  those— whether  their  employer  or 
fellow  workmen— against  whom  the  strike  is  directed;  and 
the  measure  of  coercion  and  intimidation  imposed  upon  those 
against  wliom  the  strike  is  threatened  or  directed  is  not  fully 
realised  until  all  those  probable  consequences  are  considered. 
Such  is  the  nature  of  tin-  lliivnt,  and  such  the  degree  of 
coercion  jind  intimidation  involved  in  it.""'"^ 

§337.  Strikes  and  trusts.-If  it  hr  argued  — and  this  argu- 
ment should  b(!  controlling— that  the  danger  nf  nhuse  (hx-s  not 
justify  the  entire  denial  or  abrogation  of  ;iii  impiu-lnnt  eco- 
nomic right.  i)iit  ;ill(»ws  at  most  its  reguhition  l)y  i-cison.ihlr 
restriftif)ns,  still  the  prohibition  of  strikes  cannot  be  regarded 
MS  exeecding  the  limits  ot'  legislntive  power.  ;is  long  ns  tin- 
anti-trust  acts  are  iiiiheld  ;is  eonstitut ion;il.  Il  is  imi»ossil)le 
to  say  that  there  is  such  diU'erence  Ix'tween  the  price  of  hihor 

and   till'   prii I'  other  eoiiiMn»dit  ies.   th;it    Jigreements  to   raise 

the  former  arc  h.-yomi  tlic  legislative  power  ol'  pidliihit  ion. 
wliile  agreements   to   raise   tin-   lattci-  arc   suhjcci    to    i|.      Both 

'■•"Plant  V.  WooflH,   I7('.   M;iss.    I'.tL'.    r.7    N.    11.    mil. 


§  337  STKIKES   AKD    TRUSTS.  329 

are  equally  in  restraint  of  trade  as  undcrstootl  in  our  law; 
that  is  to  say  in  restraint  of  free  competition.  It  would  hv  no- 
ing  too  far  to  say  that  the  exemption  of  labor  make-s  the  anti- 
trust acts  unconstitutional  as  class  legislation ;  but  since  the 
validity  of  anti-trust  legislation  is  upheld,  the  most  that  can 
be  said  in  favor  of  strikes  is  that  it  is  within  the  limits  of 
legislative  policy  to  discriminate  in  favor  of  wages;  but  hibor 
cannot  claim,  as  a  matter  of  constitutional  right,  tiiat  it  is 
exempt  from  a  power  of  the  state,  which  extends  to  .ill  oiIki- 
contracts  and  commodities.  The  discrimination  between  em- 
ployers and  employees  in  this  respect  was  adverted  to,  but 
an  expression  of  opinion  declined  by  the  Supreme  Court  of 
Pennsylvania,'^^  and  it  has  been  sustained  as  legitimate  classi- 
fication in  Nebraska.'^^ 

51  Cote    V.    Murphy,    159    Pa.    St.  ^2  ciclaiul  v.  Anderson,  (Neb.),  92 

420.  N.  W.  306. 


CHAPTER   XV. 

COMBINATIONS  OF  CAPITAL. 

RESTRAINT     OF     TRADE,     MANIPULATION     OF     PRICES,     AND 

TRUSTS  AND  MONOPOLIES. 

§  338.     English  legislation.— The  English  statutes  and  law 
books   mention    three   kinds   of   practices   calculated   to   make 
necessaries    of    life    and    other    eonnnodities    expensive:    fore- 
stalling, regrating,  and  engrossing.     Forestalling  is  the  buy- 
ing  of  merchandise   or   dead   victual    coming   in   the   way   of 
market,    dissuading   persons   from   bringing   goods   there,    or 
inducing  them  to  enhance  tlir  i)!-i('i'.     Regrating  is  the  buying 
of  corn  or  dead  victual  and  selling  it  in  the  same  market, 
thus  making  the  purchaser  pay  a  double  profit.     Engrossing 
is  the   buying  wholesale  in  the  domestic  market  and  selling 
again  wholesale. i      The  earli(>st  provision  against  practices  of 
this  kind    seems  to  be  the  Judiciuin  pilloriae  of  51  Henry  Til 
(1266)   "de  forestallariis  qui  ante  horam  debitam  et  in   villa 
statutam   aliquid   emant  contra   statutuiii   vilhu'  rt   mercati."- 
Ill    the   Statutes   of  the   Realm,   acts   against   regrators,   fore- 
stallcrs.  and   engrossers,  eitlu'r  giMK'i-ally  oi-  in  specified  com- 
modities, are   foiiiHl   in  I'T   l^d.   Ill  slat.   1.  in  2  and   'A  Ed.  VI 
c.  15,  'A  ati<l  4   lid.   VI  c.  9,  1!),  and  21.  and  above  all  a   very 
full  act  in  5  and  (i  Ed.  VT.  c.  14,  1552.     The.se  statutes  were 
ri'pi'ali'd    in    1772.'''  and   as   llic   ]>ra('ti('i"s   contiiuied   to   b(^   held 
|iiniislial)li'    a1    ciuiinioii    la\v,    the    coniniDii    law    offenses    were 
aholislii'd    in    1S44    l»y    7    and    8    Vict.    di.    24.     Condiinations 
having  a   like  tendency  or  puri)ose  wci-c  not  scpai-atcly  dealt 
with    by    I'iiiglish    sta1nt(ii\v    legislat  inn.    Init     were    pnnishahli' 
<'ith<T    Hinlir   llir   ;ic1s    lii'l'iiri'    mrnl  ioncd,    oi'   ;is   criminal    con- 
spiracies  a1    coiiiMiiin    law. 

§339.  American  legislation.  I'mlri'  iln- colonial  .md  cai'lici- 
state  laws,  regrating,  forestallini;  and  engrossing  were  as  a 
rul"'  not  di'all  wilh  siirciricall  \  .  Iml  sccin  In  have  hern  rcLi'Mi'dcd 
as  matters  (A'  local  coiiccrn.'      Miinii-ipal  charters  gave  authoi"- 

>  BInrkHtone'H     C'onini.  I V.     \M;          -n'd  (Ion.    III.   .  h.   71. 

Coko'H  '\<\   InHt.   |i.   I!!.').  '  .\h      tfi      till'      (-iiiniiion      law      in 

I  Hfoj)!)*^?!,     HiHt.    f'rim.  I,:i«,     III,       ,\iiici'i('ii   hcc   liiHlii)|)'H    New   CriniiTKil 

p.  200.  liJiw    I.  Sec.   .^IH-.TJSt. 

•.v.io 


§  339  AMEKICAX    LEGISLATION.  3;jl 

ity  to  enact  ordinances  against  these  practices,  so  the  first 
city  charter  of  Chicago  of  1837,  and  the  present  City  Act  of 
Illinois/'  But  the  city  of  Chicago  has  enacted  no  ordinances 
in  pursuance  of  this  power.  Where  the  criminal  law  has  been 
codified,  the  definition  of  consi)iracy  includes  among  the  un- 
lawful objects,  acts  injurious  to  the  public  trade." 

There  is  a  marked  contrast  between  this  spar.se  and  in  a 
manner  perfunctory  legislation  until  about  ten  or  fifteen  years 
ago,  and  the  recent  legislative  activity  upon  the  subject  of 
manipulation  of  prices.  The  attempt  to  raise  and  maintain 
prices  Avill  naturally  tend  toward  the  form  most  effectual  for 
the  purpose,  which  is  the  creation  of  a  practical  monopoly, 
and  this  will  be  undertaken  as  a  rule  only  by  a  combination 
of  persons.  Combinations  of  this  kind  have  come  to  be 
known  as  trusts,  in  consequence  of  the  peculiar  form  of  organ- 
isation adopted  in  some  of  the  most  conspicuous  cases.  The 
tide  of  legislation  against  trusts  covers  the  period  from  1889 
to  1899,  during  which  there  were  enacted  in  tAventy-seven 
states  and  territories,  and  by  the  United  States,  about  seventy 
statutes  for  their  suppression  and  punishment. 

A  few  typical  examples  will  illustrate  the  statutory  defini- 
tions of  trusts:  The  Illinois  statute  of  1893  defined  a  trust 
as  follows:  A  combination  of  capital,  skill  or  acts  by  two 
or  more  persons,  firms,  corporations  or  associations  of  persons, 
or  of  tAvo  or  more  of  them,  for  either,  any  or  all  of  the 
following  purposes:  1.  To  create  or  carry  out  restrictions 
in  trade.  2.  To  limit  or  reduce  the  production  or  increase 
or  reduce  the  price  of  merchandise  or  commodities.  3.  To 
prevent  competition  in  manufacture,  making,  transportation, 
sale  or  purchase  of  merchandise,  produce  or  commodities. 
4.  To  fix  at  any  standard  or  figure  whereby  its  price  to 
the  public  shall  be  in  any  inanner  controlled  or  estal)lished. 
any  article  or  commodity  of  merchandise,  produce  or  manu- 
facture intended  for  sale,  use  or  consumption  in  the  state. 
*  *  *  5.  To  make  or  enter  into,  or  execute  or  e;u-i-v  out  any 
contract,  obligation  or  agreement  of  any  kind  or  deseription  l)y 
which  they  shall  bind  or  have  bound  themselves  not  to  sell, 
dispose  of,  or  transport  nny  nrtiele  oi-  eommodity.  or  article 

nAit.  V,  Sec.  1,  No.  51,  "to  pre-         "=111.    ("r.    Coile,   See.    4(i;     X.    V. 
vent    and    punish    forestalling    and     Penal  Code,  Sec.  168. 
regrating. ' ' 


332  COMBINATION'S  OF  CAPITAL.  §  339 

of  trade,  use,  merchandise,  commerce  or  consumption  below 
a  common  standard  figure,  or  card  or  list  price,  or  by  which 
they  shall  agree  in  any  manner  to  keep  the  price  of  such 
article,  commodity  or  transportation  at  a  fixed  or  graduated 
figure,  or  by  which  they  shall  in  any  manner  establish  or 
settle  the  price  of  any  article  or  commodity  or  transportation 
between  them  or  themselves  and  others  to  preclude  a  free  and 
unrestricted  competition  among  themselves  or  others  in  the 
sale  or  transportation  of  any  such  article  or  commodity,  or 
by  which  they  shall  agree  to  pool,  combine  or  unite  any  in- 
terest they  may  have  in  connection  with  the  sale  or  trans- 
portation of  any  such  article  or  commodity  that  its  price  might 
in  any  manner  be  affected.  All  such  combinations  are  made 
misdemeanors."  Substantially  the  same  definition  is  to  be 
found  in  the  statutes  of  Louisiana,  Texas,  Kansas  and 
Nebraska. 

The  ^Michigan  act  is  directed  against  all  contracts,  agree- 
ments, understandings  and  combinations  made,  entered  into, 
or  knowingly  assented  to  *  *  *  the  purpose  or  object  or 
intent  of  which  shall  be  to  limit,  control,  or  in  any  manner 
to  restrict  or  regulate  the  amount  of  production  or  the  quan- 
tity of  any  article  or  commodity  to  be  raised  or  produced  by 
mining,  manufacture,  agriculture  or  any  other  branch  of  busi- 
ness or  labor,  or  to  enhance,  control  or  regulate  the  market 
price  thereof,  or  in  any  manner  to  prevent  or  restrict  free 
comi)etition  in  the  production  or  sale  of  any  article  or  com- 
modity.* 

The  New  York  act  of  May  7,  1S!)7.  declares  unlawful  "every 
contract,  agreement,  arrangemi'iil  of  comhination,  whereby 
;i  iiioiiopol_\-  ill  llic  iii;imifacture,  production  or  sale  in  this 
state  of  Miiy  ;ii-li<-lr  or  coiiiniodity  of  coiiinion  nsc  is  or  may 
be  crcatcfl,  cstahlislicil  oi'  m,iiii1;iiii(Ml,  or  wlici'cby  competi- 
tion in  lliis  state  in  tin.?  supply  or  iirirc  of  ;iny  sucli  article 
Of  c<iiiiiiioility  is  oj-  may  be  festraini'd  oi'  pfcventeil,  of  wliefcby 
I'of  tlif  purpose  (if  cfcating,  estaMishiug  of  iiiaintaining  a 
monopoly  williiii  this  state  of  llic  manuracluff.  |ifo(luction 
(W  sail-  of  any  sui-li   afticle  of  conimo(lity  the  free  pursuit  in 

'Act   of  Juno   li(t,    IfiUri;    dciliniil       lion.    Coimoily  v.   rniim   Srwcr   l'i|ic 
iinr(iiiHti(nliiiii!il    mi     jiccdiint     nf    ••m       Co.,   ISJ   IT.  S.  .^)ll). 
cxci'jitiiiii    n.iit.'iiiicd    ill    jiiiiitlnT    siv-  »*  ,\ct    of   .Inly    I,    1SS!». 


§  340  ANALYSIS  OF  PliOVlSIONS.  ;{;{3 

this  state  of  any  lawful   biisini'ss,  trade  or  occiii)ati(jn,   is  <»r 
may  be  restricted  or  ]M-evented." 

i$  340.  Analysis  of  provisions.  — An  aii;d\sis  ;iiid  comparison 
o^'  the  several  acts  shows  the  following  main  points: 

In  a  number  of  states  the  law  sing'les  out  special  l)i'aiich('S 
of  business,  and  in  some  cases  is  conlined  to  them.  Tims 
Alabama  in  1883,  and  the  United  States  in  1887,  j)roliihit('d 
the  pooling  of  freights  by  competing  railroads ;  and  transporta- 
tion is  expressly  mentioned  in  Texas  and 'Utah;  the  first  anti- 
trust act  of  Kansas  of  1887  was  directed  against  grain  dealers ; 
combinations  between  insurance  companies  are  specially  pro- 
vided against  in  Alabama,  Nebraska,  Arkansas,  ^Missouri. 
South  Carolina,  South  Dakota  and  Utah;'-*  fees  for  profes- 
sional services  are  included  in  Kansas  and  Utah;  rates  of 
interest  in  Kansas  and  South  Dakota;  in  ]\Iaine  the  trust  to 
be  illegal  must  relate  to  articles  which  enter  into  general 
use  and  consumption  by  the  people,  and  New  York  likewise 
speaks  of  articles  and  commodities  of  common  use. 

As  a  rule,  however,  the  laws  apply  to  all  commodities.  In 
a  number  of  states  specific  exceptions  are  made,  the  effect  of 
which  will  have  to  be  considered  separately. 

The  laws  forbid  agreements  of  Avhatever  form,  using  the 
terms:  pool,  trust,  agreement,  combination,  understanding, 
arrangement,  and  contract. 

They  forbid  agreements  made  by  parties  of  whatever  char- 
acter, whether  individuals,  firms,  associations  or  corporations, 
except  that  Wisconsin  applies  only  to  corporations,  and  that 
Indiana  requires  that  the  parties  who  combine  must  control 
the  output  of  the  article  in  question. 

The  agreement  must  be  directed  to  one  or  more  or  all  of 
the  following  objects:  restraint  of  trade;  regulating,  con- 
trolling, enhancing,  or  reducing  prices;  limiting  i)roduction  or 
fixing  amount  or  quality  of  articles;  lessening,  restricting  or 
l)reventing  competition,  and  (in  Missouri)  engrossing  or  fore- 
stalling a  commodity. 

Acts  other  than  combinations  are  covered  by  the  i)i(iliibi- 
tion  of  all  attempts  at  monopoly,  to  be  found  in  the  acts  i>f 
the  United  States,  New  York,  and  New  Mexico;  by  the  statutes 

0  Insuraiu-e  is  not  included  vukUt  Aetna  Insurance  ("o.  v.  Commou- 
commodities.  Queen  Insurance  Co.  wealth,  21  Ky.  Law  Rep.  503,  45  L. 
V.  State,  86  Tex.  250,  24  S.  W.  397;      K.  A.  355. 


334  t'OMBi.XATiONS  OF  CAPITAL.  §  341 

against  comers  on  the  luavket  eiuu-tiHl  in  Illinois  and  Tennes- 
see; and  by  a  provision  of  the  statute  of  North  Carolina  for- 
])idding  the  selling-  at  less  than  cost  to  break  competition. 

Omitting  the  last  mentioned  provision,  all  the  acts  or  prac- 
tices condemned  may  be  brought  under  the  head  of  either 
combinations  in  restraint  of  trade,  or  monopolies. 

§  341.     Federal  anti-trust  legislation.— The  federal  legisla- 
tion against   trusts   rests   upon  the   jjower  given  to   Congress 
"to  regulate  commerce  Avith  foreign  nations,  and  among  the 
several  states."     Of  the  principal  acts  dealing  with  combina- 
tions, that  of  1887,  the  Interstate   Commerce  Act.^o   forbids 
the  pooling  of  freights  by  competing  interstate  railroads,  that 
of   1894   forbids    combinations   by    importers.' ^    and     that   of 
1890  (the  Sherman  anti-trust  act)'^  declares  to  be  illegal  every 
contract,   combination   in   the   form  of  trust  or  otherwise,   or 
conspiracy,   in   restraint   of   trade   or   commerce    between   the 
states  or  with  foreign  nations,  and  makes  it  a  misdemeanor 
for  any  ])erson  to  make  such  contract  or  engage  in  such  com- 
bination, or  to  mon<)i)olise,  or  to  attem])t  to  monopolise,  or  to 
combine  with  any  other  person  to  in()noi)olise,  any  part  of  such 
traile   or   (Muumerce.     As  the   federal   i)ower   ol"    legislation   is 
confined   to   interstate   nnd    foreign   connnerce,   it  has   become 
necessary    to    determine    what    combiiuitions    belong    to    this 
category.     The  Sn])i-<'in('  Court  has  derided   tli.'it   the  attempt 
to  buy  up  the  plants  of  the  four  most  important  in(le|>end(Mit 
siigai-  i-elineries  in  the  connti-y  is  not  Avithin  the  act  ol'  ISDO, 
since    manufacture    is    not    connneice.     "Contracts,    conil)ina- 
lions.  or  conspiracies  to  conti'ol  domestic  enteriu'ise  in  nianu- 
laclui'c,  agi'icult  nre,  mining,  pi'oduction   in  all   its  I'oi'ms,  oi-  to 
raise  (II"  lower  pi-iees  or  wages,  mi'jiil    niKineslidiiahlv   lend   lo 
restrain  cxleninl   as  well   as  domestic   tr;ide,   Imt    the  restraint 
woulil   he  an   indirect    result,  liowe\er  inevitahle  and   whatever 
its   extent,    and    sn<di    i-esult    would    n(tt    necessai'iiy    deteiMnini' 
the  object   of  the  contract,  comhinat  i(ui   or  conspiracy."' '      It 
would  seem   iiiuii.iteri;d   whether  tlie  comhiniiii;'  mainiraclnrers 

reside     in     the    s;ime    state    or     HI     dii'l'ei'i  lit     states.        l')Ut     a     com 

bination     lietwreii     dilTercnl,     pipe     mannlaet  urei's    not     to     hid 

I"  I  Hiippl.  l{.-v.  Still.  ]>.  rt'29.  iMTnilc.l    SfjilcH    v.    K.   C.    KniKlil, 

11  A<l     .\wK.    L'7,     IS!)!,    g     ::;.     ||       c,,..    l.'-.fi  T'.  8.    1,    !(!. 

Siippi.  p.  :\:\:\. 

<2  \    Siij.pl.    |{.v.   StiU.   ]..   7(5'J. 


5$  342  FEDEKAL    LECISLATIOX.  ;^35 

af?ainst  each  other  on  contracts  to  supply  pipes  to  other  states, 
is  within  the  act,  for  it  "directly  i-cstrains  not  alone  the 
mamifactnre,  but  the  purchase,  sale  and  exchange  of  the  manu- 
factured commodity  among  the  several  states. "'•'  An  agree- 
ment between  members  of  a  live  stock  exchange  to  charge 
certain  commissions  for  sales  of  cattle  effected  at  certain  stock 
yards  is  not  violative  of  the  federal  act,  though  the  cattle 
come  from  other  states  and  are  articles  of  interstate  com- 
merce, for  the  transaction  to  which  the  restrictive  agreement 
relates,  is  a  sale  between  parties  at  the  same  place,  and  the 
etit'ect  on  interstate  commerce  is  only  remote  and  incidental; 
nor  is  an  agreement  between  yard  traders  not  to  tr^de  with 
any  but  members  of  the  exchange  contrary  to  the  act.'^  A 
strike  of  men  employed  on  an  interstate  railroad  is  not  in 
restraint  of  trade  between  the  states,  if  it  is  confined  to  the 
contract  of  employment;  but  if,  as  a  means  of  making  the 
strike  more  effective,  the  strikers  seek  to  obstruct  the  move- 
ment of  trains  from  state  to  state,  they  become  amenable  to 
the  provisions  of  the  federal  act.^*^ 

^  342.  Division  of  control  between  states  and  the  United 
States. — The  control  over  trusts  extending  their  operations 
over  a  number  of  states  is  thus  divided  between  state  and 
federal  legislation  as  follows : 

A  combination  formed  for  the  purpose  of  engaging  in  inter- 
state or  foreign  commerce  is  subject  to  the  power  of  Congress, 
and  withdrawn  from  the  power  of  the  states.  The  state  can 
merely  refuse  to  such  combination  its  OAvn  charter  of  incorj)o- 
ration,  and  may  deprive  a  domestic  corporation  engaged  in 
interstate  commerce  of  the  power  to  consolidate  witli  other 
corporations  under  its  own  laws.^'^ 

A  combination  foi-nied  for  the  purpose  of  engaging  in  the 
business  of  manufacturing  or  insurance  is  subject  to  state 
law,  and  a  state  may  prevent  a  combination  formed  in  another 
state  from  engaging  in  such  business  in  its  territory.''*  There 
is    authority    for    saying    that    Congress    caniiot    jirevent    the 

i*Addyston  Pipe  and  Steel  Co.  v.  United      States      v.      Cassidy,      67 

Uiiitea  States,  175  U.  S.  211.  I'od.  69S;   WalcM-houso  v.   Coiner.  ."> 

15  Hopkins   v.   United   States,    171  Fed.    149. 
U.     S.     578;     Anderson     v.     United  i7  Louisville  &  X.  R.  Co.  v.   Ken- 
States,  171  U.  S.  604.  lucky,  161  U.  S.  (577,  703. 

10  United  States  v.  Workinginen 's  is  Paul  v.  Yirpinia.  S  Wall.  168. 

Amalgamated  Council,  54  Fed.  994; 


336  •  COMBINATIONS  OF  CAPITAL.  §  342 

formation  of  such  a  combiuatiou,  though  eoucerns  bekmgiug- 
to  different  states  be  parties  to  it.^''  A  state  cannot  prevent  a 
commercial  trust  of  another  state  from  entering  its  territory 
for  the  purpose  of  interstate  business;-"  nor  can  it  prevent 
an  industrial  trust  organised  in  another  state  from  coming 
into  its  territory  for  the  purpose  of  selling  its  products  to  be 
sent  from  the  state  where  they  are  manufactured.  Probably 
a  state  cannot  even  prevent  its  own  citizens  from  combining 
in  its  own  territory  to  restrain  free  competition  in  the  importa- 
tion of  goods  from  outside  of  the  state,  although  prohibitions 
to  that  effect  are  found  in  the  anti-trust  laws  of  several 
states.2i 

But  all  that  the  state  cannot  do,  Congress  may  do,  and  while 
Congress  cannot  prevent  the  organisation  of  an  industrial 
monopoly,  it  can  probably  forbid  the  sale  of  its  products  to 
other  states,  after  it  has  been  organised.-^ 

There  are  some  passages  in  the  opinion  in  United  States  v. 
E.  C.  Knight  Co.  that  lend  some  support  to  the  con- 
tention that  an  industrial  monoi)oly  is  beyond  the  power  of 
Congress  even  as  to  the  sale  of  its  manufactures,  such  sales 
being  merely  incidental  and  collateral  to  manufacturing;  but 
this  evidently  cannot  be.  The  sale  of  the  manufactured  prod- 
uct from  one  state  to  another  not  Ix-iiig  within  the  control 
of  any  one  state,  must  be  under  federal  control.  The  trans- 
action passed  upon  hy  the  court  was  a  sale  of  corporate  stock 
and  not  a  sale  of  sugar,  and  while  an  intent  to  monojiolise 
the  sale  of  sugar  to  other  states  was  charged,  it  came  l)efore 
the  court  merely  as  an  ulterior  ])uri)0se,  and  not  as  the 
subject  matter  of  any  transaction  which  was  directly  involved 
in  the  ease. 

>;■  343.     Restraint  of  trade  at  common  law.  — In    order    to 

1"  U.  S.  V.  E.  C   Kiii;,'lit   Co.,   ir»()  over    forma    may    be    .adopted.     For 

T.  S.  1.  constitutional   jxirposos   Die  controll- 

i"*  Cnitclicr  V.  Kentucky,  1-11  U.  S.  in^j   (inrstion    is   wlictlicr   tlio   salo   is 

47.  tor   .slii|inient   to   another   state,   and 

•'  ArkanHas,    Minnesota,    *Montana,  tliis  i)urp()SG  may  be  {j:ithereil  either 

TennoHHee,  and  Utah.  from    tlie    fact    that    the    pnrch.iser 

22  Nor,  it  BCCmH,  can  the  imucr  of  transpoi'ts  ;in  arlii'h-  in  its  orij,niial 
ConfjrcHH  T)e  evaded  by  paHsinp  title  package  to  anotlier  state,  or  tliat 
within  the  state  of  manufacture;  for  the  manufact>irer  or  such  intermedi- 
('onpress  must  have  constitutional  ary  :is  he  may  employ  r(>ceiveH  pay- 
authority  to  treat  a  tr:insactiuii  nicnl  hy  n'oiitlaiicc  from  .-inothcr 
nccor'iinp    to    its    ri'al    nature,    what-  slate. 


g  344  KEbTKAiiXT    Ui'    TlLVDE   AT   CUM.MuX    J.AW.  337 

understand  the  modern  anti-trust  legislaliou,  it  is  m-c-essary 
to  advert  briefly  to  common  law  principles.  That  the  spirit  of 
the  common  law  strongly  favored  free  competition  in  triidi- 
is  well  established.  But  this  general  policy  did  not  prevent 
practices  and  institutions  sanctioned  by  authoi-ity  which  ran 
contrary  to  the  principle.  ^Monopolies  were  granted  by  Royal 
Letters  Patent  until  the  courts  and  Parliament  declared  tin- 
practice  to  be  illegal  ;23  but  monopolies  could  of  course  at  any 
time  thereafter  be  authorised  or  created  by  Pai-liamcnt  itself. 
Immemorial  custom  sanctioned  also  th;-  privileges  of  guilds 
and  regulated  companies  which  were  expressly  saved  by  the 
Statute  of  Monopolies,  and  with  reference  to  which  it  was 
said,  that  bye-laws  in  restraint  of  trade  might  hiwfully  h<- 
made,  not  to  restrain  or  cramp  trade  generally,  but  oidy  for 
its  better  government  and  regidation,  or  for  the  benefit  of 
the  place  and  to  avoid  public  inconvenience,  or  for  the  im- 
provement of  the  commodity. 2^  The  status  of  monopolifs 
sanctioned  by  authority  will  be  discussed  in  connection  with 
the  constitutional  principle  of  equality. 

Restraint  of  trade  resting  upon  private  arrangements  has 
this  in  common  with  a  privileged  monopoly,  that  it  lessens 
or  suppresses  competition,  and  this  indeed  is  the  chief  mean- 
ing and  essence  of  restraint  of  trade.  Practically  it  alw;iys 
takes  the  form  of  an  agreement,  and  the  question  of  legality 
or  illegality  arises  in  two  different  ways ;  either :  shall  the 
agreement  be  enforced  or  not?  or,  can  the  agreement  be 
treated  as  a  tort  or  crime  or  cause  of  forfeiture?  Illegal  may 
mean  both  void  and  wrongful,  or  it  may  mean  simply  unen- 
forceable. 

The  usual  forms  of  arrangements  tending  toward  restraint 
of  trade  are  as  follows : 

§  344.  Associations  with  restrictive  bye-laws.— 1.  An  asso- 
ciation of  persons  engaged  in  the  same  trade,  the  bye-laws  of 
which  restrict  the  members  in  the  conduct  of  their  business, 
binding  them  to  charge  certain  prices,  or  not  t(^  sell  certain 
articles.  Such  bye-laws  are  void,  and  the  nuiking  of  tlu'in 
IS  not  within  the  charter-  power  of  a  corporation  organised  to 
promote  the  common  trade  interests  of  its  members. ^^ 

23  See.  656,  infra.  ^n  KolflF     v.     St.     Paul     Fuel     Ex- 

24Mitchel    V.    Eeynolds,    1    P.    W.      chniipe,    4S    Minn.    215;     Xostor    v. 

181.  Continental    Browing    Co..    161     Pa. 


338  COMBINATIONS  OF  CAPITAL.  §  345 

^  345.  Agreements  not  to  deal  with  persons  acting  contrary 
to  agreement.  —  2.  The  forinaliou  or  inaiiitenanee  oi*  associa- 
tions, tlie  members  of  -which  bind  themselves,  or  try  to  induce 
their  customers,  not  to  deal  Avith  persons  wlio  refuse  to  abide 
by  their  rules  or  refuse  to  join  tlicni.  oi-  who  are  not  mem- 
bers. The  chief  question  is  then,  are  they  liable  in  damages 
to  the  person  whose  trade  they  cut  off?  The  leading  case 
upon  the  subject  is  ^logul  Steamship  Company  v.  ^McGregor 
(Jow  &  Company. -•'•  The  defendants  had  formed  a  combination 
of  steamship  companies  engaged  in  the  Cliina  trade  from 
v.-hich  the  plaintiff,  competing  carriers,  were  excluded.  The 
defendants  gave  notice  to  the  China  merchants  that  any  ship- 
ment by  plaintiff's  vessels  would  debar  tlicm  fi-om  the  benefit 
of  certain  rebates  which  they  otherwise  granted  to  shippers 
dealing  exclusively  with  them;  at  tlie  same  time  they  began 
to  charge  low  and  luiimus  rates  of  shipment  in  order  to  under- 
bid plaintiff"  and  drive  it  out  of  trade.  It  Avas  held  that 
there  was  no  actionable  conspiracy,  and  that  the  acts  charged 
would  not  constitute  a  crime.  The  decision  Avas  chiefly  based 
upon  the  argnment  tbat  competition  in  trade  is  sufficient 
justification  for  injury  inflicted  upon  another,  provided  it 
does  not  descend  to  fraud,  intimidation,  obstruction,  molesta- 
tion, oppression,  oi-  the  intentional  procurement  itl"  the  viola- 
tinii  of  individual  I'iLiIds.  ;iiid  that  it  does  not  make  any  differ- 
ence whether  the  action  is  indi\idual  or  concerte(|.  since 
combination  in  trade  is  the  only  means  of  equalising  conditions, 
wealth  and  economic  ]iow<M',  and  to  discoiuitenance  the  com- 
binatifui  u\'  capital  would  be  to  discriminate  against  the  poor 
in  favoi-  oi'  the  wealthy.  That  the  combination  was  in  re- 
straint of  trade  was  held  not  to  he  sul'licieid  to  stam])  it  as  a 
conspirai-y  :  it  was.  however,  inlinialed  that  it  mi^ht  make 
the  a^M'ceiiietd  and  coMd)ination  void  ;ind  unenforceable.  The 
effect  of  the  decision  I'of  |*'iiiil;ind  is  that  a  condiination  to 
snpy)ress  coinpet  it  ion  is  neither  ;i  erinie  noi'  ;i  t(U"t,  hut  the 
rule  tluit  an  ay'recTiicnl  in  i-estrainl  id'  trade  will  not  be  en- 
forced, is  not  disturbed.  ( 'ombinat  ions  oi"  this  chai-acder  have 
eoine   hefori'    ,\niericau    courts   in   actions    i'or   daniau''es   or    For 

473;  Hiiilcy  v.  MjiHior  r'liitnlKTH  Aa-  v    .Miirr,   71    Vt.    I,    I'J   Atl.   607,  43 

•'..(•ijifion  fif  Mc'inpliis,   10.'?  Tciiii.  90.  T,.    Tf.     A.    SO.^.       Ah    :itr!,insl     lliir.l 

'H>  \i.  ]{.  A.  •'"tfit  ;    Mihvimkcc  .Miihoiih  j.iirlirs    sucli    !in    JiMHoci.-ifion    coiisti- 

&  R,   AHHOfintioii   v.  Niozorowski,   HH  IntoH  ;m   ■•utioii.'ililc   coiiHjiinicy. 

WiH.  120.  37  T,.  f?.  A.  l'-'7;   P.uutw.ll  -•"  ISH'J  App.  fas.  2."). 


§346  EXCLUSIVE   ShJLLhMi   AKKAiNCiEMEiNTS.  339 

injunctions,   and   the   relief  asked  for   has   been   (h'nit-d   in   a 
number    of   cases.      In    Illinois   the    court    refused    to    compi-l 
admission  to  membership  in  a  live  stock  exchan{>:e  or  to  enjoin 
the   exchange   from   notifying   its  members  not   to   deal    with 
complainant. 2"     The  bye-laws  of  tlie  association  even   if  void 
were  held  not  to  be  actionable,  on  tiie  authority  of  the  Mogul 
Steamship     Company     case.       In     Matthews     v.     Associated 
Press,-'*    a    bye-law    of    the    Associated    Press    forbidding    its 
members   to   receive   and   publish   the   dispatches   of  another 
association     was    sustained,     the     court    evidently     inclining 
strongly  against  the  doctrine  of  restraint  of  trade,  and  doubt- 
ing  whether   the    collection    and    distribution    of   news   came 
under  the  head  of  trade.     In  Minnesota  the  court  refused  to 
interfere  with  the  agreement  of  an  association  of  retail  lumber 
dealers  to  the  effect  that  they  would  not  deal  with  any  manu- 
facturer or  wholesale  dealer  who  should  sell  directly  to  con- 
sumers   at    any    point   where    a   retail   yard    w^as    carried    on, 
upholding  the   right  of  association   in  strong  terms,-*'   but  a 
contrary   view   was   taken   of  similar   agreements   in    Indiana 
and  Texas,^*^  and  an  injunction  against  carrying  such  an  agree- 
ment  into   effect   was   granted   in   Georgia. ^^      None   of  these 
eases  arose  under  an  anti-trust  statute.    An  agreement  similar 
to  the  one  passed  upon  in  the  Chicago  Live  Stock  Exchange 
case  was  held  not  to  be   illegal  under  the  federal   anti-tru.st 
act,  since  it  had  no  direct  relation  to  interstate  commerce. •"'^ 
The  court  also  seems  to  regard  an  association  which  admits 
any  one  willing  to  abide  by  its  terms  to  membership  as  not 
being  in  restraint  of  trade,  but  if  the  object  of  the  bye-laws 
is  to  maintain  prices,  it  can  hardly  be  doubted  that  it  would 
be  covered  by  the  provisions  of  most  anti-trust  statutes. 

§  346.  Exclusive  selling  arrangements— Rebates.— 3.  Sales 
with  provisions  for  maintaining  prices  or  for  the  exclusive 
handling  of  goods.     Arrangements  of  this  kind  are  especially 

27  American    Live    Stock    Coiniuis-  Palteii,    7    T(>x.    Civ.    630,    25   S.   W. 

sion  Co.  V.  Chicago  Live  Stock  Ex-  428. 

change,  143  111.  210,  18  L.  E.  A.  190.  ^i  Brown  &  Allen  v.  Jacobs  Phar- 
os 136  N.  Y.  333,  32  N.  E.  981.  niacy  Co..  115  Ca.  429,  ^7  L.  R.  A. 
2oBohn  Manufacturing  Co.  v.  W.  547. 

G.  Hollis,  54  Minn.   223.  32  Anderson  v.   Fiii1.>.l   States.  171 

••io  Jackson    v.    Stanfield,    137    Ind.  V.  S.  604. 

592,    36    N.    E.    345;    Olive    v.    Van 


340  COMBINATIONS  OF  CAPITAL.  §  346 

common  between  manufacturers  and  dealers.  Where  a  manu- 
facturer employs  a  selling  agent,  he  may  undoubtedly  stipulate 
that  the  agent  shall  not  sell  below  a  stated  price  or  that 
he  shall  not  handle  goods  of  rival  manufacturers.^^  This  is 
true  even  where  he  employs  many  selling  agents,  for  the 
sales  are  still  his  own,  and  Avhile  competition  between  the 
agents  as  to  prices  is  prevented,  it  must  be  remembered  that 
such  competition  would  be  possible  only  by  violating  the  duty 
of  the  agent  to  carry  out  his  principal's  instructions.  The 
manufacturer  may  also  sell  to  the  dealer  and  either  promise 
that  he  will  not  sell  to  others,  or  stipulate  that  the  dealer  will 
not  handle  rival  goods  or  will  not  sell  below  a  stated  price.  Fre- 
quently this  latter  agreement  is  made  in  this  form  that  the 
dealer,  if  he  lives  up  to  his  agreement,  becomes  entitled  to  a 
rebate  from  the  selling  price.  In  the  absence  of  anti-trust  acts, 
and  in  the  case  of  goods  manufactured  by  secret  processes 
(patent  medicines)  such  arrangements  have  been  held  not  to 
violate  the  common  law  rule  against  restraint  of  trade. '"^^  In 
Texas  the  arrangement  under  which  the  dealer  purchases  of 
the  manufacturer  is  treated  differently  from  that  under  which 
he  acts  merely  as  an  agent,  and  is  held  to  fall  under  the 
prohibition  of  the  anti-trust  act,^-'  but  in  New  York  an  agree- 
ment to  grant  a  rebate  for  not  selling  below  the  manufac- 
turer's price  is  held  lawful  notwithstanding  the  statute.^^ 
On  the  other  hand,  the  refusal  of  a  monopolistic  corporation 
to  sell  to  those  handling  rival  products  has  in  New  York  Ix'cii 
treated  as  a  conspiracy.-'^ 

In  the  case  of  John  D.  Parks  &  Sons  Co.  v.  National  Whole- 
sale Druggists  Association,'''*  the  defendant  association,  repre- 
senting 90  per  cent  of  the  w  Imlcsale  trmlc,  lind  i-iMjuired  the 
manufacturers  of  patent  medicines  in  the  I'liited  States  to 
coni|i«'l    tip'    purchasers   of   llicir    i^-oods    to    accept    a    conti'.id 

••>■•>  Wr'lrh    V.    Pliclps,    etc.,    Co.,    89  Hutch,  19  Tex.  Civ.   A|.|).   IJO,    17  S. 

Tox.    ().":?,    MuHH.    Kcv.    Laws.   di.    ->r,,  W.    L'SS. 
§   1.  -'"WmIsIi    v.    i>\vij,'lit,    M    X.    V.    S. 

a+Fowlo    V.    I'.irk,    K!)     V.    S.    SS ;  !M,   Id  App.  Div.  .'■)I.T ;  .Tdlm   I ).  I':irks 

(JurHt  V,  HarriH,  177  Miihh.  7L',  58  N.  cV    Smis    Co.    v.    Nut 'I    W.    DnijjjriHts 

I>.  174;  Hfc  jiIho  Tivi  fJroonc,  rt2  Fcfl.  Ahh'ii,  (i7  N.   !•'.   KJO. 
104;    United   HtuloH   v.   (irccnlmt,   TjI  •''  I'r-npl.'  v.   I)nl<.-.   If   N.  V.  Siipjii. 

Fed.    213;    Duebnr   Watch   Cane   Co.  :VM. 
V.   Howard   Watch   Co.,  HC.    I'cd.   (5.37.  •'"*  (57   N.   li:.    I.'IC. 

•■"■'  ('(dntiiliia     C  a  r  r  i  a  ^  c     Co.     v. 


§  34G  REBATES.  ;}41 

whereby  they  became  bound  to  .si-U  at  the  prices  iixctl  by  thi* 
manufacturer,  purchasers  violating:  such  contract  to  h)sc-"*  th<* 
rebate  otherwise  granted  them  on  the  selling  price.  The  plain- 
tiffs charged  that  manufacturers  who  were  willing  to  sell  to 
them  on  other  terms  were  coerced  into  i-efusing  to  sell 
to  them,  through  the  fear  of  losing  the  trade  of  the  associa- 
tion, and  the  truth  of  this  charge  was  admitted.  The  action 
of  the  association  was,  by  a  divided  court,  held  not  to  be  illegal 
or  in  restraint  of  trade. 

Part  of  the  plan  was  the  prevention  of  secret  rebates,  a 
purpose  which  is  undoubtedly  lawful,  for  both  at  common  law 
and  under  the  anti-trust  acts  it  is  perfectly  competent  for  a 
number  of  parties  to  agree  that  they  will  not  buy  of  a  seller 
unless  he  will  sell  to  them  as  cheapl}^  as  to  anyone  else,  such 
agreement  aiming  at  equality  of  treatment,  and  having  nothing 
to  do  with  restraint  of  competition.  Another  part  of  the  plan, 
however,  Avas  a  combination  to  prevent  any  dealer  from  sacri- 
ficing any  part  of  his  regular  rebate  or  eonmiission  as  a  means 
of  underselling  his  competitors.  The  combination,  while  look- 
ing primarily  to  the  maintenance  of  commissions,  sought  to 
accomplish  this  object  by  the  maintenance  of  prices  as  a  neces- 
sary means  thereto ;  and  the  prevailing  opinion  concedes  that 
"it  does  away  with  competition  among  dealers  as  to  prices," 
but  a  strong  plea  is  made  in  favor  of  the  right  of  smaller 
dealers  to  protect  themselves  by  arrangements  like  that  before 
the  court  against  the  underselling  by  stronger  competitors, 
and  the  anti-trust  act  is  ignored.""^ 

The  issue  of  rebate  certificates  is  forbidden  by  statute  in 

30  The  plan  of  the  association  tirely  legal,  and  that  it  was  within 
speaks  of  the  purchasers  as  selling  tlioir  rights  to  accomplish  this  result 
agents,  but  in  reality  they  seem  to  by  refusing  to  deal  with  or  handle 
be  purchasers  and  not  agents,  since  the  goods  of  any  manufacturer  who 
the  goods  are  billed  to  them  at  the  Mould  not  comply  with  their  de- 
selling  price,  upon  which  they  re-  mands.  If  the  object  of  the  coin- 
ceive  a  rebate  of  10  per  cent.  bination   ceased   here,   it   would   not 

40  The  dissenting  opinion  of  Cul-  be  subject  to  criticism.  But  the 
len,  J.,  says:  "I  agree  *  »  *  scheme  adopted  goes  further.  It 
that  the  combination  between  the  requires  not  only  the  manufacturer 
jobbers  to  force  the  manufacturers  to  sell  at  the  same  price  to  each  job- 
to  sell  to  each  of  their  number  at  ber,  but  to  compel  each  jobber  to 
exactly  the  same  price  and  upon  the  sell  to  the  consumer  at  the  same 
same  terms,  and  to  sell  to  no  one  ]>rice,  by  refusing  to  sell  goods  to 
else   on   any   better    terms,    was   en-  any  one  who  would  not  comply  with 


340  COMBINATIONS  OF  CAPITAL.  ^  ;U7 

Louisiana.^*  ^Massachusetts  since  1901  provides-*^  that  a  per- 
son shall  not  make  it  a  condition  of  the  sale  of  jioods  that  the 
purchaser  shall  not  sell  or  deal  in  the  goods  of  any  other  per- 
son, this  provision,  however,  not  to  prohibit  the  appointment 
of  agents  or  sole  agents  for  the  sale  of,  nor  the  making  of 
contracts  for  the  exclusive  sale  of  goods. 

^  347.  Agreements  to  fix  prices,  limit  supplies,  or  divide  busi- 
ness.—4.  Agreements  In'tween  several  distinct  competing  con- 
cerns looking  toward  the  removal  of  competition,  or  of  its 
injurious  effects,  by  fixing  prices,  limiting  supplies,  or  by  distri- 
bution of  business.  Such  agreements  have  come  before  the 
courts  in  a  few  cases  on  i)roeeedings  for  conspiracy,^ ^  or  in 
Quo  Warranto,^^  or  usually  in  actions  arising  out  of  the  original 
agreement  or  out  of  contracts  entered  into  in  furtherance  of 
it.  As  early  as  1847  and  1848,  the  Supreme  Court  of  New 
York  held  certain  agreements  between  a  number  of  proprietors 
of  transportation  lines  on  the  state  canals  for  the  regulation 
of  rates  to  be  illegal,  and  refused  to  enforce  agreements  made 
in  connection  therewith.*^  Agreements  in  connection  with 
the  formation  of  combinations  for  the  control  of  the  coal 
.supply  in  certain  markets  have  been  held  to  be  illegal  in 
Pennsylvania  and  Ncav  York,-**^  a  combination  for  the  control 
of  the  sup])ly  and  sale  of  salt  in  Ohio.-*'  In  ^las-sachusetts  a 
contract  for  the  division  of  the  business  in  fish  skins  (used 
for  the  manufacture  of  glue)  was  sustained  on  the  ground  that 
fish  glue  is  not  a  necessary  of  life,'^"^  but  in  New  York  agree- 
ments lookin^^  toward  the  control  of  the  supply  of  bluestone 
and  of  envelopes  have  been  declared  unenforceable,  since  these 
jirticlcs.  lli»Mi;:li  not  of  i)rim('  necessity,  were  useful,  the  court 
|e;i\iiiLr  it  niKJetcniiinef]  wlietlier  articles  of  hixui-y  could  fall 
undir  tile  common  l.iw  iMile  against  restraint  ol'  trade.*"* 

thcKU    rc<|uircmcnlH.      Jt    is    in    lliis  '•'  llookci'    v.    Vjiiulcwator,   4    Den. 

respect    that    the    Jijjrnomciit    is    vie-  :;i!>;  Staiitdii  v.  Allen,  .T  Den.  4.34. 

imiH    iin<l    ojpiTafPH    in     rcstniint    of  '"'  Morris    Kiiti    Coal    l"o.    v.    Bar- 

tradf,    for    it    (If'stroys    competition  il.iy     Coal     Co.,     (JS     Pa.     St.     17,3; 

jiinoriR  the  joliljcrH.  ■'  Aniot  v.  Pittston  i"ir   l-'Iniira  Coal  Co., 

<'  Act  170,  1H<(4.  (iS    N.    Y.   n.lH. 

<-•  He%-.   LawH,  cli.  nc,  §    1.  '7  Central   Ohio   Salt    C...   v.   (!ntli- 

«n  I»,.„[,|,.    V.    Hheldon,     i.'.'.i     N.     V.  i  ie,   .3.'')   Ohio  St.   (idC. 

"•''•1.  ■"*  (ilouceHter,    etc.,    Co.    v.     Kussia 

<•  I'.upl,     X.     Mill;    Kxchan^'c,    llf)  Cement  Co.,  154  Mass.  92. 

N.  V.  'J<57.  <i>  CununingH    v.    Union    BluoHtuno 


§  348  COVENANTS  ON  SALE  OF  BUSINESS.  34;^ 

§348.  Covenants  by  vendor  of  business.— 5.  Covenants 
made  by  a  vendor  of  a  business  not  to  enj^a^'e  in  tin- 
same  business.  As  these  covenants  may  be  necessary-  U) 
protect  the  purchaser  against  what  wouUl  he  unfair  competi- 
tion, the  common  law  relaxes  the  general  rule  against  restraint 
of  trade,  and  makes  a  distinction  between  total  or  general  and 
partial  restraint.  A  partial  restraint,  limited  by  place,  time, 
or  circumstance,  and  based  upon  a  valuable^  consideration,  will 
be  enforced  by  the  courts.^^  In  England  the  idea  of  reason- 
able restraint  has  been  given  a  liberal  interpretation  in  the 
ease  of  Nordenfeldt  v.  IMaxim-Nordenfeldt  Co./"''  where,  upon 
a  covenant  made  by  a  patentee  and  manufacturer  of  guns  and 
ammunition  of  war  in  transferring  his  patent  to  a  company, 
whereby  he  bound  himself  not  to  engage  in  that  Inisiness 
for  a  term  of  twenty-five  years,  it  was  held  that  owing  to  the 
nature  of  the  business,  and  the  limited  number  of  customers 
to  whom  sales  might  be  made  (confined  mainly  to  govern- 
ments), the  restraint  imposed  w^as  not  larger  than  was  neces- 
sary for  the  protection  of  the  covenantee,  and  not  injui'ious 
to  the  public  interest.  The  same,  and  even  a  more  liberal 
view,  was  taken  in  New  York,  in  Diamond  Match  Company 
V.  Roeber,^2  where  the  court  sustained  a  covenant  of  a  nuitch 
manufacturer  upon  selling  his  business  not  to  engage  in  the 
same  business  at  any  time  within  99  years  anywhere  within 
the  United  States,  with  the  exception  of  the  states  of  Xevada 
and  Montana.  The  court  intinuited  that  the  doctrine  of  the 
common  law  had  been  weakened  and  modified,  but  chose  to 
place  its  decision  upon  the  ground  that  the  restraint  was  par- 
tial, refusing  to  regard  the  exception  of  two  remote  states  as 
merely  colorable.  This  position  cannot  be  accepted  as  satis- 
factory, and  the  case  must  be  taken  as  an  abandonment  or  at 
least  a  strong  modification  of  the  common  law  doctrine.  The 
latter  is  strongly  upheld  in  Illinois,  Avhere  a  covenant  l)y  a 
vendor  not  to  engage  in  the  same  business  for  a  term  of 
twenty-five  years  was  held  unenforceable  even  as  to  the  state 
of  Illinois — a  position  in  its  way  perhaps  as  extreme  as  that 
of  the  New  York  court.^ 

Co.,   164  N.  Y.  401,  58  N.  E.  525;  r.i  1894  App.  Ca.s.  535. 

Cohen    v.   Berlin   &    Jones   Envelope  r.2i06  N.  Y.  47.1. 

Co.,  166  N.  Y.  292,  59  N.  E.  906.  1  Union    Strawboard    Co.    v.    Bon- 

soMitchel  v.  Eeynold's,   1   P.  Will,  field,   lii3   111.  420,  61   N.  E.  1038. 
ISl,   1711. 


344  COMBINATIONS  OF  CAPITAL.  §  349 

# 
It  should  be  noted  that  in  the  Roeber  ease  the  purchaser 

was  already  engaged  in  the  match  business;  the  very  object 
of  the  whole  transaction  was  therefore  removal  of  competition. 
But  this  in  New  York  is  no  objection.  "We  suppose  a  party 
may  legally  purchase  the  trade  or  business  of  another  for  the 
very  purpose  of  preventing  competition,  and  the  validity  of 
the  contract,  if  supported  by  a  consideration,  will  depend 
upon  its  reasonableness  as  between  the  parties.  "^  A  man 
may  even  be  paid  to  go  out  of  business,  though  he  has  no 
stock  or  good  will  to  deliver.^  New  York  apparently  regards 
the  common  law  as  prohibiting  only  combinations  between 
distinct  concerns  for  enhancing  of  prices,  limiting  of  pro- 
duction, or  pooling  of  profits.-* 

^  349.  Consolidation  of  different  concerns.  — G.  The  consoli- 
dation of  several  concerns  into  one  differs  from  the  buying  out 
of  competitors  in  the  fact  that  the  former  does  not  involve 
a  covenant  not  to  engage  in  the  same  business.  Tn  both  cases 
competition  is  met,  not  by  agreements  regarding  the  man- 
agement of  distinct  concerns,  but  by  removing  the  source  of 
rivalry  and  competition.  Disregarding  in  the  case  of  buy- 
ing out  a  competitor  the  possible  covenant  not  to  engage  in 
the  same  business,  the  two  cases  constitute  transactions  which 
in  the  absence  of  complicating  circumstances  are  undoubtedly 
viilid  at  common  law:  nani('l>'.  tlie  sale  of  a  business,  or  the 
formation  of  a  partnership. 

A  c<)ni|)li('a1i()n  arises  where  either  of  the  competing  parties 
is  a  corporation.  .\  corpoi-alion  would  not  ordinarily  be 
prevented  from  liii\ing  or  (unh'ss  it  be  a  |)ub]ie  service  cor- 
poration with  ;i  I Vancliist' I  selling  a  ])lant  from  or  to  a  com- 
petitor, iiut  if  a  imigei-  is  attempted  in  otiiei-  ways  certain 
diflficuil  ies  will  arise.  Tims  if  one  eoi-por;!]  ion  sleniiil  desire 
to     ;ic(|nire    the    eontrolling     interest     in     the    stock     ol'    ;iiiollier 

competing  forpoi-at  ion.  the  eor|)or;ite  power  to  own  sneh  stock 
must  be  impiiced  into.  ,\  synopsis  of  the  statntory  provi- 
sions in  ipiestion  is  I'onnd  in  llie  Ivejiort  oi'  the  Industrial  ("om- 

-'  I  )i:irii(iiii|     Match    Co.    v.    RoctiiT,  -'Wood     v,     VVliilchcnil     I'.i'os.    ( 'o., 

KiC,   N.    V.    JT.".;   :i1h..  I.cslio  v.   Lnril-  Ki".   N.  V.  MS,  r)9  N.  E.  3.17. 

lani,   no  \.   Y.  r.l9,  1   L.  M.  A.   ir,V,.  i  L(mik1i  v.  ()iitrTl)ri(l>,'o,   \\:\  N.  V. 

Si)   alsii    llarriHod    v.   fihicdst!   SviKur  DTI,  ~^>   I-.   U.   A.  fi7l. 
Urfininn    <'...,     1  Ml     1'<'<I.    'M)4,    ryH    L. 

i;.  A.  '.nr,. 


§  350  CONSOLIDATION'    AXU   TKUSTS.  345 

luissiuu  11,  p.  288  and  289.  In  New  Jt-i-s.-y  and  D.-luuure 
there  is  affirmative  authority  to  buy  the  stock  of  ollu-r  eur- 
porations,  and  it  has  been  held  that  one  corporation  may  buy 
the  controlling  interest  in  the  stock  of  the  majority  of  its 
rivals.^  But  it  has  been  held  in  Illinois  that  a  corporation 
which  is  engaged  in  the  business  of  manufacturing  and  sup- 
plying gas  cannot  make  it  one  of  its  charter  objects  to  buy 
the  stock  of  other  gas  corporations,"  and  the  same  restriction 
was  enforced  with  reference  to  a  manufacturing  corporation 
under  the  laws  of  New  York."  This  form  of •  consolidat«*d 
control  is  therefore  not  open  in  all  the  states. 

§  350.  Trusts.— A  greater  difficulty  was  encountered  in  that 
form  of  organisation  which  has  given  the  name  of  trusts  to 
monopolistic  combinations.  When  these  combinations  first 
assumed  the  gigantic  proportions  which  attracted  public  no- 
tice, the  uniting  concerns,  which  naturally  were,  as  a  rule, 
corporations,  tried  to  preserve  their  distinct  legal  existence, 
and  merely  placed  their  shares  in  trust  with  a  managing  board 
which  was  to  control  the  business  of  all  jointly.  It  was  held 
that  the  action  of  the  constituent  corporations  was  illegal  and 
ultra  vires,  because  corporations  cannot  form  partnerships,'* 
or  otherwise  surrender  the  control  of  the  management  of  their 
affairs.  "It  is  quite  clear  that  the  effect  of  the  defendant's 
action  was  to  divest  itself  of  the  essential  and  vital  elements 
of  the  franchise  by  placing  them  in  trust;  to  accept  from 
the  state  the  gift  of  corporate  life  only  to  disregard  the 
condition  upon  which  it  was  given ;  to  receive  its  powers 
and  privileges  merely  to  put  them  in  pawn ;  and  to  give  away 
to  an  irresponsible  board  its  entire  independence  and  self- 
control."''  In  the  case  just  cited  the  Sugar  Trust,  and  in 
Ohio  the  Standard  Oil  Trust,  was  consequently  declared  il- 
legal upon  quo  warranto  proceedings.^" 

§  351.  Consolidation  of  corporations.  — In  consequence  of 
these  decisions  the  trust  form  of  joint  numagement  has  been 

•''•  Trenton    Potteries    Co.    v.    Oli-  « Whittenton    Mills    v.    Upton,    10 

phant,  58  N.  J.  Eq.  507,  46  L.  E.  A.  (iray  582. 

255.  9  People  v.  North  River  Sugar  Re- 

«  People   ex   rel.    Peabody   v.    Chi-  fininfr  Co.,  121   N.  Y.  5S2. 

(•ago  Gas  Trust  Co.,  130  111.  268.  i»  State  ex  rel.  Watson   v.  Stand- 

"  De     La     Vergne     Refrigerating  ard   Oil  Co.,  49  Oh.  St.   137,   15  L. 

.Machine  Co.  v.  German  Savings  In-  R.  A.  145. 
stitution,  175  U.  S.  40. 


346  COMBINATION'S  OF  CAPITAL.  §  352 

gradually  abandoned,  and  the  regular  way  of  organising  a 
trust  (for  the  name  has  become  fixed  and  familiar  in  popular 
language)  is  to  form  a  new  corporation,  have  it  buy  the 
plants  of  the  concerns  sought  to  be  united,  and  to  pay  for 
them  in  stock  or  bonds  of  the  new  corporation  to  be  issued 
to  the  shareholders  of  the  concerns  bought  out.  This  is  prac- 
tically a  consolidation  of  corporations  and  requires  statutory 
authority,  but  the  authority  to  consolidate  is  often  given  to 
corporations  engaged  in  the  same  gen^M-al  line  of  business.^ ^ 
Where  there  is  no  power  to  consolidate,  or  a  doubt  with  regard 
to  it,  the  difficulty  has  been  sought  to  be  avoided  by  the 
formation  of  a  eori)oration  the  objeet  of  which  is  to  acquire 
a  controlling  interest  in  tlie  stock  of  the  corporations  which 
are  to  be  subjected  to  harmonious  management.  As  a  matter 
of  form  the  individuality  and  separate  management  of  each 
constituent  corporation  is  preserved,  and  the  objection  to 
the  trust  form  is  thus  avoidcnl.  The  status  of  the  security 
holding  corporation  is  certainly  not  better  than  that  of  the 
amalgamated  corporation  organised  under  a  power  to  consoli- 
date, and  if  the  latter  be  lu'ld  illegal  as  an  instrument  of 
monopoly,  so   is  tlie  former. 

j;  352.  Monopolistic  corporation.— If  an  organisation  result- 
ing from  the  union  of  formerly  competing  concerns  is  illegal 
notwithstanding  a  general  power  to  consolidate,  it  must  be 
because  it  i)ursues  an  illegal  object,  and  the  illegal  object 
must  l)e  the  monopolising  of  some  brancli  of  business.  A 
iiiono|)ol\',  in  other  words,  is  not  saved  from  illegality  by 
a.ssuming  coi-ixd'ate  form.  "The  defenil.iiit  eonlends  that  the 
change  in  orj^iinisation  troin  .-m  imiiieoi'poi'ntc'd  association 
t<»  a  e<)rji(ira1  ion,  and   the  change   in   the   mode  of  holding  the 

'I  I  inliiwtri;il     lic'port     ('ommisaion  l;i\v;      hut      llicif      llic      pnrjxisc     of 

II  1186,  -87.  Can  mm  .•tutlidrisiition  ri'straiiiiiifj  competition  was  re- 
in I'oiiHoIidate  or  to  orf^jinisc  u  He-  ffarded  as  plain.  Tlio  federal  aiiti- 
ciirify  h()liiiii^(  eorporatioii,  fjiven  by  tnisl  act  cannot  he  held  to  forbid 
a  Htato,  avail,  if  Houjrlit  to  be  api)lied  every  eonsolidation   or   formation   of 

III  interstate  or  foreij^n  eommerce,  p.irlni'rslii|i,  iiihIim-  state  I;i\vh,  he- 
:i^ainHl  llii-  federal  prohihition  nf  Iween  firevionwiy  dislinit  and  com- 
conihinalioriH  in  restraint  of  smli  peting  coneernH,  simjjly  because 
commcrcef  In  Ignited  States  v.  these*  coneernH  are  enynped  in  in 
.Northern  Sr-ciirities  Co.,  IL'O  I'cd.  tcrstale  or  foreign  cdmincnc.  Scr 
7'_'1,  an  arrani,'cmi'nl  servin),'  the  limitation  below,  §  .■{.ll,  from  Hop- 
pnr(ioHe  of  cnnsiilidation  was  held  kins  v.  I'liiticl  States,  171  U.  S.  r)7H. 
illijja!    tiioiiKh    aiithoriHed    by    state 


^  353  MONOPOLY. 


347 


distillery  properties  of  the  various  corporations  formerly  Ije- 
loiiging  to  the  trust,  by  surrendering  the  stock  of  the  corpora- 
tions, by  means  of  which  the  control  of  these  proi)ertit's  was 
formerly  maintained,  and  having  the  properties  themselves 
transferred  and  conveyed  directly  to  the  defendant  corpora- 
tion, have  purged  the  combination  of  its  illegality.  *  •  • 
That  corporation  succeeds  to  the  trust,  and  its  operations  are 
to  be  carried  on  in  the  same  way,  for  the  same  purpose, 
and  by  the  same  agencies  as  before.  The  trust  then  being 
repugnant  to  public  policy  and  illegal,  it  is  impossible  to 
see  why  the  same  is  not  true  of  the  corporation  which  suc- 
ceeds to  it  and  takes  its  place.  The  control  exercised  over 
the  distillerj^  business  of  the  country— over  production  and 
prices— and  the  virtual  monopoly  formerly  held  by  the  trust, 
are  in  no  degree  changed  or  relaxed,  but  the  methods  and 
purposes  of  the  trust  are  perpetuated  and  carried  out  with 
the  same  persistence  and  vigor  as  before  the  organisation 
of  the  corporation.  There  is  no  magic  in  a  corporate  organisa- 
tion which  can  purge  the  trust  scheme  of  its  illegality,  and 
it  remains  as  essentially  opposed  to  the  principles  of  sound 
public  policy  as  when  the  trust  was  in  existence.  "^2 

§  353.  When  is  the  point  of  monopoly  reached?— The  di-- 
cision  in  the  Whisky  Trust  case  was  rendered  under  the  anti- 
trust laws  of  the  state,  but  in  Illinois  and  many  other  juris- 
dictions it  is  assumed  that  a  monopoly  is  illegal  as  a  matter 
of  common  law.^^  Yet  it  is  probably  also  true  that  the 
question  of  monopoly  has  always  been  treated  as  incidental 
to  and  inseparable  from  agreements  in  restraint  of  trade. 
An  agreement  is  invalid  as  in  restraint  of  trade  as  soon  as 
it  tends  to  hamper  the  liberty  of  action  of  two  competing 
concerns,  although  the  two  together  may  be  far  from  monop- 
olising the  market ;  but  in  the  case  of  buying  out  or  consolida- 
tion the  mere  removal  of  a  particular  competitor  is  not  suffi- 
cient; there  must  be  the  creation  of  a  practical  monopoly. 
When  is  that  point  reached?     The  Diamond  Match  Company 

12  Distilling    and    Cattle    Feeding  members    of    the    t-orporation ;    Peo- 

Co.  V.  People,  156  111.  448,  490.    So  pie  v.  Duke,  44  X.  Y.  Suppl.  336. 

in   New   York   the   action   of   a   mo-  1-  Harding    v.    American    Glucose 

nopolistic    corporation    (the    Ameri-  Co.,    182    111.    551,    55    X.    E.    577; 

can    Tobacco    Company)     has    been  Bishop  v.  American  Preservers'  Co., 

treated  as  a  conspiracy  between  the  ]57  111.  284. 


348  COMBINATIONS  OF  CAPITAL.  §  353 

is  a  very  conspicuous  case  of  a  practical  monopoly ;  yet  a 
purchase  made  to  perfect  its  organisation  was  upheld  in  New 
York.^^  It  is  true  that  in  the  New  York  case  the  point  was 
not  made  that  the  purchase  was  in  aid  of  a  monopoly,  restraint 
of  trade  merely  being  relied  upon,  but  the  court  also  took 
occasion  to  say  "The  business  is  open  to  all  others,  and  there 
is  little  danger  that  the  public  will  suffer  harm  from  lack 
of  persons  to  engage  in  a  profitable  industry.  Such  contracts 
do  not  create  monopolies."  If  the  point  of  monopoly  is  not 
reached  as  long  as  there  is  a  possibility  of  starting  rival  en- 
terprises, most  of  the  recent  consolidations  known  as  trusts 
are  legal. 

Again  it  must  be  asked :  is  a  consolidation  saved  from  the 
charge  of  monopoly  by  the  fact  that  it  does  not  embrace  all 
rival  concerns?  Not  apparently  in  Illinois,  and  the  Court  of 
Appeals  of  New  York  has  spoken  of  arrangements  covering 
90  per  cent  or  95  per  cent  of  the  business  as  practical  monopo- 
lies.^-'^ But  the  federal  courts  have  held  the  Whisky  Trust 
not  to  be  a  monopoly,  because  it  embraced  only  three-fourths 
of  the  product  in  the  United  States,  and  because  the  vendors 
of  distilleries  were  not  under  obligation  not  to  build  others,' '^ 
and  in  Rhode  Island  it  was  not  held  to  be  a  monopoly  for 
three  out  of  four  manufacturing  concerns  in  New  England  to 
consolidate  with  a  new  corporation  since  the  fourth  concern 
was  loft  free  to  compete.' ' 

If  we  then  reach  the  result  that  a  monopolistic  combination 
is  illegal  at  common  law,  whatever  loi-iii  it  may  assuinc,  it  is 
yet  impossible  to  say  when  the  point  oi"  practical  monopoly 
is  it;i('1i('(1  ;in<l  lln'  pci'niissihlc  limits  oi'  mici'c  magnitude  of 
(•onsr)li(lation  ai-e  overstep|)i'd.  The  line  between  the  two 
eludes  judicial  (h^finition.  nit  hough  economic  writers  have  in- 
die.'ited  the  jx-rcentage  of  the  total  business  which  secures  a 
monopolistic;  conti'ol.  Tlioi'  may  of  course  be  cases  where  it, 
is  clear  that  tlir  point  of  monopoly  has  not  been  reached.''^ 

"  Di.'itnond    Match   Co.   v.    Rncltrr,  "■  Uiiitccl    SI.iIch    v.    Cirooiiiiiit,    .'>1 

10(5  X.  Y.  47.'!.     Contra  in  .Miclii^.-iii :  I'cd.    L'O."). 

Hiclianl.Moii    v.    liiilii,    77    Midi.    ^S'.Vl.  '^  Oakdiilr    Mininlacliiriii)^'    Co.    v. 

•f>  r'umminyH    v.    Union    lihu'Htonc  (iiirst,    is    \{\\.    I.    484,    L'.S    1^.    M.    A. 

Co.,  164  N.  Y.  401;  ('(.hm  v.  H.-ilin  (i.'Jit. 

&    Jones    Envolojn'    Co.,    100    N.    \.  I'^Scc     c.     jr.     Mcroditli     v.     New 

li92.  .liTHPy    Zinc    &    Iron    f^o.,    55    N.    J, 

Eq.  211. 


tj  ;}54  MONOPOLV. 


:J49 


Assuming  that  the  point  of  practical  monopoly  is  roaeheil 
when  a  business  "by  reason  of  ownership  or  control  of  lands 
growing  timber  or  other  vegetable  products,  or  containing 
coal,  oil,  iron,  or  other  minerals  or  metals  used  in  the  manu- 
facture of  such  articles,  or  by  reason  of  ownership  or  control 
of  the  instrumentalities  of  manufacture,  production  or  salt- 
shall  have  the  power  to  control  or  affect,  in  whole  or  in  part, 
the  prices  of  said  articles  throughout  the  United  States,  so 
as  to  prevent,  forestall,  stifle,  destroy,  or  hinder  competition 
therein,"  can  such  a  business  reasonably  be  declared  to  be 
illegal?  There  may  be  only  one  mine  containing  a  certain 
mineral  (so  e.  g.  turquoise)  in  the  United  States:  can  it  be 
illegal  to  own,  or  to  attempt  to  acquire,  that  mine?  Certainly 
not;  and  how  if  there  are  two  or  three  mines?  The  anti- 
trust bill  introduced  (but  not  passed)  in  the  57th  Congress, 
from  which  the  above  M^ords  are  quoted,  adds  that  the  business, 
to  be  illegal,  must  be  "so  conducted  in  whole  or  in  part  so 
as  to  prevent,  forestall,  stifle,  destroy  or  hinder  such  compe- 
tition," and  this  seems  to  contemplate  some  illegal  practice 
besides  the  taking  advantage  of  the  control  of  more  or  less 
exclusive  natural  or  economic  resources;  but  if  so,  it  would 
have  seemed  unnecessary  to  make  an  express  exception,  as  the 
bill  does,  in  favor  of  a  business  founded  on  a  secret  process. 
In  fact,  after  a  business  has  obtained  a  monopoly,  it  seems 
superfluous  to  require  that  it  shall  not  be  so  conducted  as 
to  hinder  competition,  for  competition  will  be  hindered  wntli- 
cut  any  particular  machinations  on  its  part.  The  prohibition 
of  the  law  should  be  directed  against  combinations  preceding 
the  monopoly  and  having  for  their  object  its  formation.  And 
if  the  term  monopoly  covers  the  control  of  resources  enabling 
a  concern  to  exercise  a  sensible  effect  upon  the  supply  or  the 
price  of  an  article  throughout  the  United  States,  it  is  cleai- 
that  hardly  any  consolidation  of  great  corporations  can  bo  law- 
ful, and  that  there  is  a  repugnancy  between  the  laws  allowing 
such  consolidation,  and  the  prohibition  of  monopolies. 

§  354.  Interpretation  of  anti-trust  acts.— Having  examined 
the  doctrines  of  the  common  law  regarding  restraint  of  trade 
and  monopoly,  we  should  ask  whether  they  have  been  sub- 
stantially altered  or  Avhether  their  uncertainties  have  l)een 
removed  by  the  statutory  legislation  oi"  recent  years. 

If  it  could  be  urged  successfullv  that  the  common  law  con- 


350  C0.MBi^AT10x\S  OF  CAPITAL.  ^  354 

demns  only  those  combinations  which  rohite  to  articles  of 
prime  necessity,  the  anti-trust  acts  would  constitute  an  ex- 
tension of  the  doctrine  in  that  respect,  for  in  many  states 
they  undoubtedly  cover  all  commodities.  Thus  they  have 
been  enforced  iy  Texas  with  regard  to  combinations  limiting 
the  sale  of  intoxicating:  liquor.^"  But  in  most  states  the  courts 
would  not  recog:nise  in  this  respect  any  difference  betAveen 
statute  and  common  law,  since  they  regard  the  common  law 
doctrine  as  extending  to  convenient  and  useful  articles,  barring- 
at  most  luxuries.-*' 

It  has  been  held  by  the  Supreme  Court  of  the  United  States 
that  the  federal  anti-trust  act  forbids  any  agreement  in  re- 
straint of  trade,  no  matter  whether  the  purpose  be  to  prevent 
merely  ruinous  competition  or  to  oppress  the  public.-^  The 
dissenting  judges  were  of  the  opinion  that  the  federal  act 
should  be  interpreted  as  applying  only  to  agreements  in  un- 
reasonable restraint  of  trade.  But  it  would  be  very  difficult 
In  prove  that  the  common  law  made  any  such  distinction  as 
lo  arrangements  regarding  prices;  the  only  forms  of  restraint 
of  trade  which  were  recognised  as  reasonable  were  the  vendor's 
covenant  not  to  engage  in  the  same  business,  limited  as  to 
time  and  place,22  and  the  bye-laws  of  regulated  companies. 
So  it  was  held  in  New  York  in  a  case  decided  on  common  law 
principles  that  the  monoi>olistic  agreement  remained  illegal 
though  it  be  conceded  that  one  of  its  i)urposes  was  to  enable 
the  parties  to  obtain  i-casonable  i)rices,  since  it  gave  them 
till'  [Ktwcf  to  (ix  ;ifbitr;ii'y  .-ind  unreasonable  pi-ices.  "Tlu' 
scope  of  till'  contract,  and  not  the  possible  self-restraint  ol" 
tin-  pnrlics  to  i1.  is  tin-  test  of  ils  validity."-''  Tii  this  respect, 
then,  the  anti-trust  law  makes  no  innovation. 

The  anti-trust  acts  admit  oiv  tlicir  face  of  an  interpretation 

making  every  pai't nersiiip  and  coi'|)orat ion  illegal,  sin 'vei'v 

])artiiersiii[)  ami  eorpoi-ation  necessarily  involves  an  agi-ee- 
iiieiit  liet  Willi  persons  n^garding  suj)plies  ami  prices.  But 
I  lie  obvious  answer  to  such  a  suggestion  is  lliat   every  statute 

'"ToxjiH    &     Pacilic     Coal     Co.     v.  :m    a^rrconiciit    iiinlcr    tlio    aiiti-lruHt 

LawHoii,   Hit   TfX.    .'I'.M.  laws    is    roiircdiMi     liy     tlio    .Suprnmo 

2"  ('iimminijH    v.     Union    HlncHlonr  (unit     (Hopkins    \.     ITnitod    Sfatoa, 

Co.,  164  N.  V.    101.  r,H  N.   K.  HLT).  171    V.  S.  .^.7s). 

2'  IhiitfMl  St;ifcH  V.  'rr.'ins-MisHonri  '■' Cninininf^s    v.     Ciijnii     Hlnostone 

KreiKht    AnHociafion.    ir.(5    V.  S.   L'!)(t.  Co.,  104  N.  Y.  401. 

22  The  continning  validity  of  mich 


§354  CONSTRUCTION   OF  ACTS.  :}.-,l 

must  receive  a  reasonable  construction  and  lliat  il  was  mani- 
festly not  intended  to  touch  business  associations  of  the  usual 
kind.  The  United  States  Supreme  Court  approves  the  saiiif 
general  principle.  "The  Act  of  Congress  must  have  a  ri'ason- 
able  construction,  or  else  there  would  be  scarcely  an  agree- 
ment or  contract  among  business  men  that  could  not  be  said 
to  have,  directly  or  remotely,  some  bearing  upon  interstate 
commerce,  and  possibly  restrain  it."-*  A  distinction  bctwecni 
partnerships  and  combinations  has  been  recognised  repeatedly. 
So  in  Stanton  v.  Allen r'^  "No  one  can  be  deceived  by  any 
supposed  analogy  between  the  principle  of  uniformity  of  prices 
among  the  members  of  an  ordinary  business  firm,  and  the 
same  thing  in  a  confederation  formed  for  no  other  purpose  or 
use  than  to  bring  it  about."  But  it  will  not  save  the  illegal 
combination  that  it  assumes  the  form  of  articles  of  co-partner- 
ship, if  the  combining  concerns  retain  in  reality  their  former 
distinctness  and  individuality. ^^^ 

The  anti-trust  acts  being  primarily  directed  against  com- 
binations of  concerns  being  and  remaining  otherwise  distinct 
and  separate,  they  cannot  be  held  to  have  repealed  by  implica- 
tion the  statutes  allowing  the  consolidation  of  corporations 
engaged  in  the  same  general  line  of  business,  which  will  in 
many  cases  be  competing  corporations.  But  the  spirit  of  the 
law  is  violated  where  the  consolidation  is  formed  for  the 
purpose  of  creating  a  monopoly,  since  monopolising  a  branch 
of  industry  is  an  illegal  object  at  common  law,  and  no  cor- 
poration may  be  formed  for  an  illegal  object.  Therefore 
where  a  business  according  to  its  nature  tends  toward  a 
monopoly,  a  consolidation  of  competing  concerns  may  be  ab- 
solutely forbidden,  so  in  the  ease  of  competing  railroads,^" 
and  such  consolidation  may  be  held  illegal  at  common  law. 

The  great  difficultv  in  the  case  of  consolidation  of  industrial 
corporations  is  to  determine  when  it  becomes  monopolistic, 
and  unless  we  confine  the  term  monopoly  to  a  combination 
which  suppresses  or  absorbs  all  rivals  and  perhaps  even  shuts 
out  opportunities  for  forming  new  rival  concerns,  the  differ- 
ence between  legality  and  illegality  will  be  one  of  degree,  i.  e. 

24  Hopkins  v.  United  States,  171  637;  Craft  v.  McConoughv,  70  111. 
U.  S.  578.  34(5. 

25  5  Donio    (N.  Y.)   434.  st  Minnesota  legislation,  sec  Pear- 
2c  Fail-bank     v.     Learv,     40     Wis.      sail  v.   Great   Northern    R.   Co..    Ifil 

U.  S.  646. 


352  COMBINATIONS  OF  CAPITAL.  §  35;") 

every  consolidation  of  exceptional  magnitude,  especially  one 
reaching  out  toward  different  parts  of  the  country,  will  fall 
under  the  ban  of  the  anti-trust  laws.  In  this  respect,  too, 
the  anti-trust  legislation  adheres  to  the  common  law,  and,  it 
is  true,  does  nothing  to  make  it  more  definite. 

§  355.  Constitutionality  of  anti-trust  legislation.-^— The 
.status  of  restraint  of  trade  at  common  law  has  an  important 
bearing  upon  the  question  of  the  constitutionality  of  the  anti- 
trust statutes.  For  if  contracts  in  restraint  of  trade  are  gen- 
erally regarded  as  void  and  unenforceable,  it  nuiy  be  argued 
that  the  right  to  make  them  cannot  be  included  in  the  liberty 
guaranteed  by  the  bills  of  rights.  As  a  matter  of  fact,  the 
validity  of  these  statutes  has  generally  been  accepted  without 
(luestion.-**  It  is,  however,  necessary  to  consider  a  few  points, 
which  may  seem  to  present  constitutional  questions. 

It  can  hardly  be  denied  that  the  anti-trust  acts  create 
offenses  out*  of  acts,  which  in  themselves  and  directly  are  not 
necessarily  harmful  and  may  even  be  beneficial,  merely 
because  they  involve  a  tendency  to  develop  ultimately  oppres- 
sion of  the  public,  if  they  are  allowed  to  go  unchecked.  This 
aspect  has  caused  the  constitutionality  of  the  federal  act  to 
be  drawn  in  question  on  the  ground  that  it  deprives  of  liberty 
and  ])roi)erty  without  due  process  of  lav/.  It  was  urged  in 
I'liited  States  v.  Joint-Traffic  Association,^"  that  it  was  not 
within  the  power  of  Congress  to  prohibit  all  contracts  in  re- 
straint of  trade,  since  not  all  such  contracts  are  prejudicial 
to  llie  security  or  welfare  of  society.  The  court,  however,  took 
the  vit'W  that  restraint  (»f  trade  is  iiecessai-ilx-  iiijiii-ious  to 
tlif  |»ul»lic  in  maintaining  i)rices,  and  tliat  Die  |)ow('i'  to  regu- 
late commerce  must  include  the  power  to  ]irohibit  contracts 
which  shut  out  the  operation  of  the  gent^ral  law  of  competition. 
it  was  therefore  jield  irrelevant  that  the  combination  merely 
intended  to  estabiisii  reasouiihle  rati's  and  to  prevent  i-iiinons 
aiul  reckless  competition.      Il    li;is  ;ilso  been   lield   lli;il    it    is  no 

answei-  to  tlie  elijirge  oi"  ille'j-;!!  (•(  »iil  hi  n;i  t  ion  to  show  1h;it  its 
irnnietji.'ite  object  oi*  efT'eet  is  to  i-ediicc  jiriees  to  the  consunieiv'" 
In     I'nit'-d     States     v.     Trans-M  issonn     i''reiL'lil     Associ;it  lon,'"- 

^•'RcT,  iil.Mo,  8  7.TJ.  •■"•171    V.  S.  Mr,. 

-» Ht!itc«  i-x   n-l.    Monnott    v.   HiK-k-  "i  I>poplc>    v.    Milk    Kxcliiiiij^o,    14.1 

.v..  I'ijK'  l.Uic  (•<...  <il  oh.  Sf.  .I'JO,  .in      \.  V.  •jr.7,  L'7   L.   K.  .\.    I.'.7. 

N.  i:.  \r,\.  •■'-'  inn  v.  s.  'joo. 


§356  CONSTITUTIOXAIJTV.  ;j5;i 

the  dissenting-  judges  were  of  the  opinion,  that  tlie  federal 
act  should  be  interpreted  as  applying  only  to  agreements  in 
unreasonable  restraint  of  trade.  In  the  case  of  the  Joint- 
Traffic  Association,  where  it  was  urged  that  the  constitutional 
power  of  the  government  extended  only  to  the  prevention  of 
unreasonable  restraints,  the  same  judges  dissented,  but  with- 
out filing  an  opinion;  it  is  therefore  impossible  to  say  whether 
they  agreed  with  that  contention,  or  whether  they  simply 
adhered  to  their  original  interpretation  of  the  act. 

It  might  aid  the  proper  solution  of  the  constitutional  ])i-oli- 
lem,  if  the  distinction  between  the  unenforceability  of  an 
agreement  and  the  civil  or  criminal  liability  for  the  act  of 
entering  into  it  were  recognised.  It  should  be  williin  the 
power  of  the  state  to  refuse  its  aid  in  the  compulsory  enforce- 
ment of  an  arrangement  which  it  believes  to  have  a  tendency 
unfavorable  to  the  highest  interests  of  the  community.  But 
the  state  does  not  ordinarily,  and,  it  seems,  cannot,  require 
that  individuals  should  in  all  their  dealings  pursue  standards 
of  conduct  dictated  by  a  complete  subordination  of  private 
to  public  interest;  hence  that  a  contract  may  be  refused  ju- 
dicial enforcement  does  not  necessarily  mean  that  it  may  be 
made  the  subject  of  penal  legislation.  When  economic  condi- 
tions make  mutual  understandings  between  managers  of  in- 
dustrial enterprises  as  to  mode  and  policy  of  management 
advantageous,  and  the  policy  adopted  by  each  is  such  that 
it  could  not  constitutionally  be  made  a  crime,  it  is  not  only 
futile,  but  beyond  the  proper  scope  of  the  police  power  to  at- 
tempt to  punish  such  an  understanding,  especially  by  treat- 
ing it  as  a  felony.  The  efifect  of  the  constitutional  view  here 
suggested  would  leave  the  common  law  doctrine  of  restraint 
of  trade  undisturbed,  and  w^ould  merely  narrow  the  scope  of 
the  common  law  of  conspiracy  wdiich  Avas  always  vague  and 
undefined,  and  in  its  extreme  application  may  well  be  pro- 
nounced to  be  inconsistent  wnth  principles  of  constitutional 
liberty. 

§  356.  Discrimination  between  combinations  for  different 
purposes.— Another  argument  against  the  constitutionality  of 
anti-trust  acts,  which  does  not  apply  to  the  principle  of  the 
legislation,  but  to  particular  forms  of  enactment,  is  that  of 
arbitrary  discrimination.  Several  of  the  statutes  contain  ex- 
ceptions of  various  kinds.  Some  of  these  simply  remove  from 
23 


354  COMBINATIONS  OF  CAPITAL.  §  356 

the  operation  of  the  law  eases  Avhich  are  not  Avithin  its  general 
principle.  Thus  ^liehigan  and  Texas  except  contracts  for  the 
trood-will  of  a  trade  or  business  recognised  as  valid  at  common 
law  or  in  equity.  North  Carolina  provides  that  bu.yers  for 
their  own  use  may  combine  to  protect  themselves  from  im- 
position in  cost  or  purchase  price,  a  form  of  combination 
which  has  no  tendency  to  reduce  competition.  Wisconsin  ex- 
cepts organisations  intended  to  legitimately  promote  the  in- 
terests of  trade,  commerce  or  manufacturing,  probably  meau- 
ing  thereby  the  usual  associations  of  persons  engaged  in  the 
same  business  for  periodical  reunion,  for  diffusion  of  informa- 
tion, and  the  procurement  of  beneficial  legislation. 

But  in  a  number  of  states  (Arkansas,  Georgia,  Illinois,  In- 
diana, Louisiana,  ^Michigan,  iMissouri,  INIontana,  North  Car- 
olina, Tennessee  and  Texas)  the  acts  are  not  to  apply  to 
agricultural  products  or  live  stock  while  in  the  hands  of  the 
producer  or  raiser.  In  Texas  this  exception  was  held  legiti- 
mate."'' on  the  ground  that  it  is  not  Avithin  the  evil  sought  to 
be  remedied,  since  agricultural  producers  must  dispose  of  their 
stock  (piicklx-  and  have  no  facilities  for  combination;  but  the 
federal  courts  look  a  dit'fei-cnt  view,-'^  and  the  Supreme  Court 
has  declared  the  exception  lo  he  an  arliitrary  discrimination 
contrary  to  the  principle  of  the  ('(lual  protection  of  the  laws, 
and  fatal  to  the  whole  statute  in  which  it  is  contained.-''^'  In 
the  states  having  this  proviso,  the  illegality  of  trusts  must 
Ihi  rcfdi-c  rest  upon  the  common  law. 

In  view  of  this  (M'cision  doubts  may  be  (Miti'i-tained  even 
with  I't'gard  to  tiiose  statutes  which  cover  all  ai'ticles  of  nier- 
chandis(?,  for  why  slnmld  an  exception  bi'  admillcd  for  other 
cliarges?  A  few  states  condeiim  agi-cciiieiits  regarding  rates 
of  itisuraiiee  and  of  1  i-ansporlalion  :  oidy  one  state  (Washing- 
ton) ijieliides  tlie  price  id"  |)rol'essi(»na I  services.  Perhai)s  it 
may  br-  said  tliat  in  otiicr  states  the  illegality  of  agreements 
relating  to  sneh  (diai-L:i's  is  l(d't  lo  llie  eonniion  law.  ami  lliat 
III'  nneoiisl  i1  ntioiia  lit_\  arises  only  \'n)\\\  an  e\pi-ess  exception 
contained    in   thi'  statute. 

I'nl   tlicfc  remains  the  (pieslion  of  laliorcrs'  agri'emcnls  liav- 

•'^  WatciH- Pierre    Oil    (  .,.    v.    Stair.  Co.,      IS-J     U.  S.     .''.10;      folldwod     in 

]»  Tex.  Civ.   App.    1,  44   H.   W.   WW.  Tcx.-ih.    Sfjito  v.     Wat.Ts-i'icr.  <•    Oil 

«♦  Kf  flric.-.   7i»    I'lMJ.    K«.p.  r,'J7.  Co.,  (>7  S.  W.  1(1.^.7, 
sf*  Connolly    V.    niiiciii    Sewer    I'ipn 


§  356  TRUSTS   AND   STRIKES.  355 

ing   for   their   object   the    increase    of   wages.      A    immb.T   of 
states    (Louisiana,   Michigan,    .Missouri,    Montana,    Nel)raska, 
South  Dakota,  Texas,  Wisconsin)  make  express  exceptions  in 
favor  of  these ;  Illinois  provides  that  where  tlie  cost  of  articles 
is  mainly  made  up  of  wages  it  shall  not  be  unlawful  to  enter 
into  joint  arrangements,  the  principal  object  or  effect  of  which 
is  to  maintain  or  increase  wages  ;-^<'  in  some  states  strikes  have 
been  excepted  from  the  operation  of  the  laws  against  con- 
spiracy ;3'''   in  other  states  they  have  long  been   legalised   by 
custom.     Is  such  a  discrimination  between  hibor  and  capital 
justifiable  ?     The"  common  law  made  no  distinction  in  its  con- 
demnation of  combinations  injurious  to  trade  and  commerce, 
and  combinations  of  workmen  were  in  some  early  American 
cases,  held  to  be  within  the  law  of  conspiracy.-"''^     Under  the 
federal   anti-trust   act,   combinations   of  workmen   have   been 
declared  illegal,  where  their  object  was  to  obstruct  interstate 
traffic.^^     The  Supreme  Court  of  Pennsylvania  has  declined 
to  pass  upon  the  constitutional  aspect  of  such  discrimination;*" 
in  Nebraska  it  has  been  sustained  as  a  legitimate  classifica- 
tion.*^    A  special  legislative  treatment  of  strikes  must  justify 
itself  by  special  conditions  which  apply  only  to  manual  labor 
as  a  commodit}^ :  either  that  wage  earners  need  special  pro- 
tection, or  that  a  high  price  paid  for  labor  cannot  be  con- 
sidered as  an  injury  to  the  public  in  the  community.     It  is 
believed  that  most  states  would  sustain  the  different  treatment 
of  labor  and  capital  in  this  respect,  but  it  is  not  easy  to  recon- 
cile such  discrimination  with  the  doctrine  asserted   by  some 
courts  that  with  regard  to  his  contract  of  employment,   the 
laborer  cannot  be  constitutionally  controlled  on  the  ground 
that  he  is  economically  weak  and  dependent. 

■in  This   provision,    introrlnced    into  ■!••  Unitoil  Statos  v.   WorkinpmPii 's 

the   act   of   1891   by   an   amendment  Amalgamated  ("onncil,  54   Fed.  i)!t4 ; 

of    1897,   has   been    declared   imcon-  United    States    v.    Cassidy,    67    Fed. 

stitntional.     People  v.  Butler  Street  698. 

Foundry  and  Iron  Co.,  201  Til.  236,  « Cote    v.    Murphy,    ir.it    Pa.    St. 

66  N.  E.  349.  420. 

37  N.  Y.  Penal  Code  §  170.  "  Cleland  v.  Anderson   (Neb.),  92 

38  People  V.   Fisher,   14  Wend.  9;  N.  W.  306. 
Com.  V.  Tluiit.  4   Mete.   111. 


CHAPTER    XVI. 

CORPORATIONS.! 

§  357.  Association  and  incorporation.— The  American  law 
recognises  tlie  right  ol"  associalion  roi-  economic  purposes  in 
principle,  and  only  the  abuse  of  the  right  for  oppression  and 
restraint  of  trade  is  dealt  with  by  the  police  power.  The  right 
of  association  does  not,  however,  include  the  right  of  incorpo- 
ration, which  requires  some  positive  governmental  authorisa- 
tion. A  corporation  is  regularly  an  association,^  but  it  is  an 
association  invested  with  legal  personality.  The  attribute  of 
legal  personality  means  that  the  corporation  may  hold  prop- 
erty in  its  corporate  name,  as  if  the  aggregate  body  were  a 
unit  distinct  from  its  members.  Corporate  rights  may  then 
be  disposed  of,  corporate  obligations  may  be  assumed,  and 
corporate  controversies  may  be  litigated  without  the  actual 
concurrence  of  all  the  members,  and  a  change  in  the  persons 
of  the  members  does  not  affect  the  title  to  corporate  property. 
Moreover,  the  liability  for  corporate  obligations  is  according 
to  tlie  theory  of  our  law  limited  to  corporate  property.  The 
right  to  associate  does  not  carry  with  it  the  right  to  hold 
|)roj>rrty  in  a  corporate  cap'acity.  Without  this  right,  how- 
t'VtM'.  .Ill  association  may  be  seriously  handicapp^ed.  If  the 
mcmljfi-s  of  the  association  are  numerous,  it  is  inconvenient 
and  ])raeticall3^  impossible  for  them  to  hold  property  as  joint 
tenants  or  tenants  in  common;  especially  in  the  case  of  i-cal 
»'statt',  llii-  changes  ol"  title  consequent  upon  death  oi-  otlier 
changes  in  nii'mbcrshii)  would  lead  to  intolerable  complications. 
'I'o  some  extent  tliese  iiicoiiveiiii'nccs  may  be  obviated  hy 
{)la('ing  the  i)roi)erl\'  in  tlic  hands  (tl  a  few  members  or  otliers 
as  trustees  I'of  all  and  hy  other  contractual  stijiulations  l)e- 
tween  the  mi'mbefs.  and  devi(M's  of  this  nature  have  been 
largely  resorteil  to  in  tije  formation  of  joint-stock  companies; 
yet  in  some  res|)e('ls  the  status  of  such  unincorporated  com- 
I)anies  anri  so(Meties  is  uncertain  and   unsatisfactory,  and   the 

•  Sep,  nlHo,  8  713-7'JO.  f^nfliolif    Pisliop    of    Chicago    is    a 

2  Tho   corpnr.'if  ion    hoIi-    im    imt.   iin-      <  (irpor.-ition   sole  -  ImiI    it    is   of   Utile 
known   in   the   Unil<M|   SlatoH — ho   fhc      pr:iitical   im|iortance. 

:{r)G 


§  358  INCORPOUATION  AS  A  FRANCHISE.  ;^57 

benefit  of  limited  liability  cannot  be  secured  witiiout  incorpo- 
ration. 

§  358.  The  right  to  incorporate  as  a  franchise  or  license.— 
The  right  to  act  as  a  corporation  depends  upon  positive  lethal 
authority  granted  by  the  sovereign.  This  principle  of  law  is 
firmly  established,  though  its  historical  origin  is  obscure.  By 
the  earliest  common  law  it  appears  that  the  right  to  be  a 
commiina  or  association  depended  upon  royal  license,  but  the 
difference  between  incorporated  and  unincorporated  associa- 
tions or  communities  was  unknown.  All  recognised  and  lawful 
communities  acted,  sued  and  were  sued  under  a  common  name, 
and  acquired  rights  and  assumed  obligations  by  the  acts  of 
their  representatives,  while  the  benefit  of  limited  liability  did 
not  yet  exist. ^ 

The  idea  of  the  corpus  or  corporation  as  a  distinct  and 
fictitious  person  was  developed  only  about  the  end  of  the 
fourteenth  and  the  beginning  of  the  fifteenth  century,  under 
the  influence  of  the  speculations  of  canonical  jurists.  About 
the  same  time  (1392)  the  old  statutes  of  mortmain,  forbidding 
religious  societies  to  purchase  land  without  royal  license,  were 
extended  to  municipal  and  other  secular  communities,  since 
these  were  "as  perpetual  as  men  of  religion."-*  A  considerable 
number  of  charters  of  municipal  incorporation  follow  each 
other  in  rapid  succession  during  the  reign  of  Henry  VI,  begin- 
ning with  the  charter  of  Kingston-on-IIull  (1439),  in  all  of 
which  we  find  the  express  grant  of  corporate  capacity  in  the 
form  used  to  the  present  day,  coupled  with  the  license  in  mort- 
main, which  according  to  one  of  the  earliest  petitions  for  in- 
corporation, that  of  the  men  of  Plymouth,  of  1-411.  was  the 
principal  purpose  for  which  the  charter  was  desired."'  The 
statutory  provision  forbidding  the  acquisition  of  land  without 
the  license  of  the  king  thus  co-operated  with  the  theory  that 
the  corporate  personality  was  a  fiction  and  a  special  attribute 
depending  upon  the  gift  of  the  sovereign,  to  make  a  royal 
charter  a  requisite  for  every  legal  incorporation,  and  this 
theory  became  part  of  the  American  common  law,  the  legisla- 
ture succeeding  to  the  prerogative  of  the  king. 

§359.     Special  charters  and  general  incorporation  laws.— 

3  See      Maddox,      Firma      Burgi,  s  Gross,    The    Guild    Merchant    I, 

passim.  p.  04. 

■*  15  Ric.  II,  cap.  5. 


358  COEPOEATIONS.  §  360 

The  riglit  to  form  a  corporation  thus  depends  in  all  the  states 
upon  the  consent  and  action  of  the  legislature.  The  practice 
Avas  formerly  for  the  legislature,  in  its  discretion,  to  grant 
special  charters  to  any  association  applying  therefor,  while 
now  nearly  everywhere  general  statutes  exist,  under  which  a 
number  of  persons,  by  complying  with  certain  conditions,  may 
become  a  corporation  for  one  of  the  purposes  specified  by 
the  statute,  the  law  in  some  states  allowing  incorporation  for 
all  lawful  objects  (with  stated  exceptions),  while  in  others 
it  enumerates  the  various  classes  of  purposes  for  which  cor- 
porations may  be  constituted. 

But  whether  incorporation  takes  place  bj''  special  charter 
or  under  general  statute,  it  can  only  be  obtained  upon  follow- 
ing the  requirements  prescribed  by  the  legislature,  which  in 
this  respect  enjoys  the  fullest  power  and  discretion.*'  As  to 
all  corporations,  therefore,  the  legislature  has  a  wide  and 
almost  unlimited  power  of  initial  regulation.  This  appears 
legally'",  however,  as  a  condition  annexed  to  a  license,  and  there- 
fore operative  onl}^  by  the  voluntary  acceptance  of  those  to  be 
bound  thereby ;  practically  this  power  of  regulation  serves  the 
purposes  of  an  enlarged  police  power,  the  operation  of  which 
property  holding  associations  can  hardly  escape.  Incorpora- 
tion can  indeed  be  hardly  regarded  any  longer  as  a  special 
privilege  and  franchise ;  under  the  operation  of  the  general 
statutes  it  has  become  almost  like  a  common  right,  exercised, 
as  nearly  all  common  rights  are,  under  restrictions  imposed 
])y  law  for  the  common  benefit. 

^  360.  Restrictions  on  corporate  capacity.— The  restric- 
tions i)eculiar  to  the  exercise  of  corporate  powers  rest  partly 
upon  the  common  law,  and  partly  upon  statute.  The  most 
important  common  law  restriction  is  that  which  is  imposed  by 
what  is  known  as  the  doctrine  of  ultra  vires;  by  which  each 
corporation  is  confined  to  those  i)Owers  which  are  necessary 
to  the  accomplishment  of  its  charter  rights  and  objects,  so 
that  it  cannot  make  contracts  nor  assnnu'  obligations  or  aeciuii-e 
profx'rty    nol     rc'iulred    Toi-    lliose    imi-jioses.      There    is    some 

"  "  Tlio  ^rantiny  of  tlif  ri^^lits  iiml  may   \)v  acc(im|)aiiie(l   witli   any  Himh 

privilojrpw  which  conHtituto  the  fnin-  conditions    as    the    LeKislature    may 

rhisoH    of     a     corporation     being    a  ilccm    most    suitalilc    to    the    public, 

matter    rc.Mtinjj    entirely    within    the  intcrcHts  aiwl   i>oli<"y. "     Iforn   Silver 

control     of     the     legislature,     to     be  Mining  Cn.  v.   'Sew  York,   113  U.  S. 

exercise'l    in    its    jjood    jjleaHurc,    it  30.'). 


§  ;JGO  KESTKICTIOXS  ON  CORPOIJATE  CAI^ACITY.  359 

authority  even  for  holding  tliat  no  corporation  may  be  or- 
ganised for  a  number  of  distinct  objects,  but  must  restrict  its.-M' 
to  some  branch  of  business  which  can  reasonably  be  rc^^ardrd 
as  a  unit.'  While  individual  action  can  expand  in  all  direc- 
tions, corporate  action  is  intrinsically  limited." 

The  restrictions  imposed  by  statute  are  manifold,  and  cover 
the  following  principal  matters:  the  objects  for  which  cor- 
porations may  be  organised;  conditions  as  to  minimum  number 
of  organisers,  and  sometimes  as  to  their  residence  ;  conditions  as 
to  denomination  of  shares  and  their  transferability;  manin'r 
of  organisation,  name,  subscription  and  payment  of  capital, 
and  preliminary  contracts;  regarding  officers  and  members' 
rights,  including  general  meetings,  right  to  vote,  qualification 
and  number  of  directors,  their  election,  term  of  office,  and 
removal,  the  power  to  make  and  alter  bye-laws ;  the  manage- 
ment of  corporate  business,  including  payment  of  dividends, 
acquisition  and  disposition  of  real  estate,  and  the  contracting 
of  loans;  liabilit}^  and  power  to  assess;  increase  and  reduction 
of  capital ;  change  of  name  and  purposes ;  duration,  extension, 
liquidation,  consolidation;  registration  of  officers  and  share- 
holders ;  and  requirement  of  accounts  and  reports. 

Corporations  may  be  subjected  to  regulations  which  could 
be  imposed  upon  individuals,  if  at  all,  only  for  one  of  the 
recognised  objects  of  the  police  power.  The  majority,  perhaps 
all,  of  the  statutory  provisions  regarding  corporations  might, 
it  is  true,  also  be  justified  on  the  ground  of  the  prevention  of 
fraud  and  oppression ;  for  in  the  relation  of  the  corporation 
to  outsiders  a  special  danger  of  fraud  arises  in  connection 
with  the  principle  of  limited  liability,  and  the  danger  of  op- 
pression may  be  considered  to  be  inseparable  from  the  power 
of  associated  capital;  and  the  regulation  of  the  internal  cor- 

7  People  V.  Chicago  Gas  Trust  Co.,  common  carrier  shall,  directly  or 
130  111.  268;  State  v.  Taylor,  55  indirectly,  prosecute  or  engaj,'e  in 
Oh.  St.  61,  44  N.  E.  513;  "Williams  mining  or  manufacturing  articles 
V.  Citizens'  Enterprise  Co.,  25  Ind.  for  transportation  over  its  \Yorks, 
Ap.  351,  57  N.  E.  581.  nor  sliall   such  company,   directly  or 

8  In  some  cases  there  is  e.xpress  indirectly,  engage  in  any  other  bu.^i- 
provision  against  the  carrying  on  ness  than  that  of  common  carriers, 
of  several  distinct  undertakings  by  or  hold  or  acquire  lands,  freehold, 
the  same  corporation.  The  Consti-  or  leasehold,  directly  or  indirectly, 
tution  of  Pennsylvania  (Art.  17,  except  such  as  shall  be  necessary 
§  5)  provides  that  no  incorporated  for  carrying  on  its  business, 
company    doing    the    business    of    a 


360  COKPOKATIO^'S.  §  361 

porate  life  may  be  placed  upon  the  ground  that  all  corporate 
management  is  government  by  a  majority,  and  that  the  state 
has  the  right  and  duty  to  protect  the  minority  shareholders 
from  possible  fraud  and  oppression  on  the  part  of  a  corporate 
majority.  But  the  restrictions  placed  on  corporate  action  are 
not  generally  referred  to  these  grounds,  which  would 
equally  apply  to  all  associations;  but  are  simply  regarded  as 
legislative  qualifications  of  corporate  capacity.  Corporations 
as  such  are  not  persons  having  a  natural  and  inalienable  right 
to  existence  and  happiness;  but  they  exist  by  legislative 
sufferance  subject  to  legislative  conditions. 

^  361.  The  charter  as  a  contract  and  reservation  of  legisla- 
tive power.'-'— Upon  the  theory  that  incorporation  is  a  special 
privilege  which  may  be  qualified  ad  libitum,  a  peculiar  modifi- 
cation has  been  engrafted  by  the  Supreme  Court  of  the  United 
States  in  the  Dartmouth  College  Case,i'*  decided  in  1819.  Ac- 
cording to  the  doctrine  of  this  case  every  charter  of  a  private 
corporation  constitutes  a  contract  between  the  state  and  the 
corporators  which  the  federal  constitution  protects  from  im- 
pairment by  subsequent  legislation.''  The  franchise  once  be- 
stowed and  accepted  together  Avith  the  conditions  annexed  is 
placed  beyond  legislative  control.  The  doctrine  is  confined 
In  private  corporations,  but  is  applicable  to  these  whether 
created  by  special  charter  or  by  general  statute.'-  The  legis- 
lative i)ower  in;iy  therefore  under  llie  un(iualified  operation 
of  the  doctrine  be  designated  as  one  of  initial  regulation:  it 
would  cease  or  at  least  become  greatly  diminished  as  to  each 
corporation  after  the  same  has  once  been  constituted,  during 
thr  wholi'  dl'  the  lci:;il  life  nf  th;it  coi'pdi-at ion,  and  can  be  I'lilly 
exercised  only  as  to  coi-por.it  ions  to  be  created  in  tlie  future. 
Thus   if  the  sjjccial   charter,   oi-'thc   gcnerni    l;i\v   :it    tlie   time 

'•' Srf,  :ilHn,  J)  .'»()'.l-r)7Ll,  rtWl,  rjit'.).  than    ill    the    nianiuT    urgoii    by    oiio 

'"  TniHtwH   of    DiirliiKiiitli    CoIIokc  of  the  relator's  coiinsol  wlio  consid- 

\.   Woodwanl,  4   Wlioalon  GIH.     Soc,  rird    tlic    <,'r;uit    of    inc(.r()(. ration    to 

hIho,    Hcj^MMifH,    I'fc,    V.    WillianiH,    '.•  Ix"    a    (■ompact    lit-tweon    tlie    Crown 

(!.  &  .F.   (M<i.)   .in.'">;   Brown  v.   Ilnni-  ami    a    certain    number    of    the    Bub- 

„icl,  (i  I'a.  SI,  Sf).  .i<'<'tH,  the  latter  of  whom  umlertako 

"The    contract    theory    had    lucn  in    eonsideration     nf    tlic    privili'jreH 

(•roponnded    in    Knjjiand    in    Hex    v,  wlii(h    nn'   br'slowcd    to    exert    thein- 

I'.'iHmore,    :?    T.    I{.    !'.•'.',    JKi,    when  seivcH    for    the    frond    jrovernment   of 

liuller,    .F.,    Haid:     "F    do    not    kntiw  the  jdaic. " 
how   to   reuHon    on    thin   point    better  I'-i  F^odRC  v.  Woolscy,  18  How.  .3.31. 


§  3G2  CllAKTEK   AS   COXTKACT.  ;jCl 

of  the  formation  of  the  corporation,  vested  th<'  control  of  the 
•  affairs  of  the  corporation  in  a  board  of  nine  trustees  or  di- 
rectors, this  form  of  management  could  not  Ix'  subscciuently 
changed  without  the  consent  of  the  corporation.  Tliis  peculiar 
doctrine,  although  it  has  been  acquiesce!  in  as  a  principle  of 
constitutional  law,  at  once  aroused  considerable  alarm.  An 
escape  from  its  operation  was,  however,  suggested  in  the  opin- 
ion of  one  of  the  justices  concurring  in  the  decision :  namely, 
the  insertion  in  the  original  grant  of  a  reservation  of  power 
to  change  or  modify  its  terms  or  to  repeal  the  grant  alto- 
gether.^ ^^  Many  states  have  availed  themselves  of  this  sugges- 
tion, and  have  inserted  in  their  general  incorporation  laws 
clauses  to  the  effect  that  they  may  be  subsequently  changed 
as  to  corporations  formed  under  the  original  act.  This  reserva- 
tion of  power  is  also  found  in  a  number  of  state  constitutions." 
It  appears  then  that,  while  all  states  exercise  a  power  over 
corporations  to  be  created  in  the  future  which  is  extremely 
wide  and  not  subject  to  all  ordinary  constitutional  limitations 
in  favor  of  individuals,  as  to  corporations  in  existence  we  must 
distinguish  whether  the  power  to  alter  and  repeal  has  been 
reserved  or  not.  The  difference  would  at  first  blush  seem  to 
be  radical;  it  might  be  inferred  from  the  doctrine  of  the  Dart- 
mouth College  Case  that  existing  corporations  without  the 
reserved  power  are  practically  placed  beyond  all  subsequent 
legislative  control ;  and  from  the  reservation  of  power,  that 
corporations  subject  to  it  have  no  rights  secured  as  against 
the  legislature.  The  course  of  judicial  decisions  has,  however, 
shown  that  this  radical  difference  does  not  exist,  and  has  indeed 
done  much  to  temper  if  not  to  obliterate  the  effect  of  the 
doctrine  as  originally  propounded. 

§  362.  Modifications  of  the  doctrine  of  the  Dartmouth  Col- 
lege Case.  — It  has  been  held  that  the  doctrine  that  a  charter 
is  a  contract  does  not  prevent  the  operation  of  the  police  power 
in  so  far  as  it  is  exercised  to  protect  peace,  safety,  health  and 

1"  For   earlier   acts   of   incorpora-  ^^  Florida   and    Minnesota   appear 

tion    reserving     legislative     power,  to    have    no    reservation    of    power, 

ste   Mass.   Act,   March   3,   1809,   §  7  Kentucky    and    Missouri    merely    re- 

(inanufg.  corporations),  and  N.  Y.  serve     the     e.xercise     of     the     police 

Laws,    1813,    ch.    59,    §§    8    and    9  power    .nid    provide    that    corporate 

(College    of    Physicians    and    Sur-  powers    shall    be    exercised    subject 

geons),    with    a    saving    for    vested  to  law. 
interests. 


3G2  CORPORATIONS.  §  362 

morals.  The  constitutions  of  several  states  (California,  Mis- 
sissippi. Missouri,  Louisiana,  ^Montana.  Pennsylvania),  express, 
this  principle  in  another  form  by  providing  that  the  police 
po-wer  shall  never  be  so  abridged  as  to  permit  corporations 
to  conduct  their  business  so  as  to  infringe  the  rights  of  individ- 
uals or  the  general  well-being  of  the  state.  A  railroad  company 
cannot  therefore  set  up  its  charter  to  escape  the  operation  of  a 
law  compelling  it  to  adopt  certain  safeguards  calculated  to 
prevent  accidents,^''  and  the  charter  right  of  an  electric  com- 
pany to  place  its  wires  under  the  streets  of  a  city  is  subject 
to  reasonable  municipal  regulations  as  to  the  method  of  exer- 
cising that  right  ;^'^  the  charter  of  a  lottery  or  a  brewing  com- 
pany does  not  prevent  subsecjuent  legislation  to  suppress  lot- 
teries or  the  manufacture  of  intoxicating  liquors.^"  For  as 
the  governnicnt  cannot  i)art  with  its  power  to  guard  against 
disorder,  disease,  or  the  corruption  of  morals,  a  contract  pur- 
porting to  do  this  is  void  a 6  iiiilio.  and  it  is  impossible  to  speak 
of  the  impairment  of  the  obligation  of  a  contract  where  the 
contract  is  illegal.  Corporations  are  therefore  fully  subject 
to  the  ()p(M"ation  of  ilic  police  power  in  the  narrower  sense 
of  the  term,  and  must  submit  to  such  i-egulations  and  restraints 
as  are  called  for  by  the  safety,  health,  or  morals  of  the  com- 
muiiit\,  notwithstanding  an\-  cluirtcr  provisions.  It  has  even 
been  inl  ini.ittd  liy  the  I'nited  States  Supreme  Court  that  there 
is  implied  in  the  charter  of  every  coiporatioii  the  condition 
that  the  corporation  shall  be  subject  to  such  reasonable  regula- 
tions in  respect  to  the  general  conduct  of  its  att'airs  as  the 
legislature  may  from  tiiiK^  to  tim(^  ]u-escribe,  which  do  not  ma- 
terially intei-fcn-  with  the  substantial  enjoyment  of  tlu'  priv- 
ileges the  state  has  granted,  and  serve  ou\y  to  secure  the  ends 
for  which  the  corporation  was  ci-eated;  a  life  iiisui'ance  com- 
jian\'  woiilij  tlius  mil  lie  pi'olected  l)\-  its  charter  IVom  a  sul)- 
seipirnt  nipiireiiicnt  of  sworn  sl;itenients  jind  submission  to 
e\;iiiiin;it  ions.' '^       In    llie    c;ise    Ix'I'orr    llie    coui't.    howe\'ei-.    the 

loTtioriM'  V.    IImiImm.I,  etc..    U.   «'<...  I'hifto,    ot.-.,    Co.    v.    Dow.-ll.    17    Col. 

27    Vf.     140;     lnili;iri:i|.()liH,    olc,     K.  'MC). 
('«(.  V.   Korchfival,    H".   IikI.  84.  "  fltonn   v.    MisBisflippi,    HM    IT.   S. 

>«  MiHHiiiiri     ex     rcl.     liJiclcdo    Ojih-  S14;    Ro.slon    Bcrr   Cn.    v.    M.'issiiclui 

linlil   Cn.   V.    .Miirpliy,    17<l   IT.   R.   7.S;  scttH,  <»7   V.  S.   'J.'.. 
Amor.    Ifapid    'l'<l.    ( '...    v.    H.-hh,    l'jr»  ih  fliica^o       T-ifc        Ins.       Co.       v. 

N.  Y.  (ill,   i:{  1,.   I{.   A.    ir.l;  Hi'C  nlso  Nordics,    li:!    C.   S.   .^)7 1 ;    Ka>jlc    Iu8. 

C(i.  V.  ohiu,  ir.;{  I',  s.  44«;. 


§  362  iMOUlFlCATlOiNS  OF  COiNTRACT   TIIEOKV.  ,ny,i 

charter  of  the  company  contained  a  clause  tliat  the  act  should 
not  exempt  the  company  from  tlie  operation  of  t^eneral  hiws 
thereafter  to  be  enacted  on  the  subject  of  life  insurance.  And 
so  in  the  later  case  of  Pearstill  v.  Great  Northern  R.  Co.,'" 
where  the  same  doctrine  is  expressed,  a  power  of  ;niiendment 
had  been  reserved  in  the  charter  of  the  railroad  company,  liul 
in  Louisville  &  Nashville  R.  Co.  v.  Kentucky,-"  the  state  was 
held  to  have  power  to  forbid  the  consolidation  of  competing: 
corporations,  though  the  right  to  consolidate  should  be  held  to 
be  given  by  the  charter,  and  though  the  charter  contained  no 
reservation  of  power.  The  Court  of  Api)eals  of  Kentucky  holds 
that  where  the  property  of  a  corporation  is  affected  by  a  pub- 
lic use,  a  power  of  alteration  is  implied,  "unless  in  unmistak- 
ably clear  language  the  state  has  indicated  a  deliberate  purpose 
not  to  interfere  in  all  time  to  come."-^  It  is  not  clear  how  far 
such  an  implied  power  of  subsequent  regulation  might  go  with- 
out violating  the  charter  contract;  not,  it  seems,  to  the  extent 
to  which  its  exercise  had  been  attempted  in  the  Dartmouth  Col- 
lege Case,  of  which  it  was  said  in  the  Pearsall  case:  "It  was 
not  the  case  of  an  amendment  in  an  unimportant  particular.— 
the  taking  away  of  a  non-essential  feature  of  the  charter,  but 
a  radical  and  destructive  change  of  the  governing  body,— a 
transfer  of  its  power  to  the  executive  of  the  state,  and  virtually 
a  reincorporation  upon  a  wholly  different  basis.  "-- 

There  is,  moreover,  a  tendency  to  place  upon  the  scope  of 
the  contractual  effect  of  the  charter,  niul  consequentl\-  up(ui 
its  constitutional  protection,  a  narrow  construction;  the  eliai-- 
ter  privileges  will,  if  possible,  be  so  construed  as  not  to  be 
exclusive  or  irrevocable, ^-^  and  a  contract  will  be  recognised 
only  where  there  is  a  consideration:  so  an  exclusive  right  to 
maintain  a  bridge  does  not  prevent  the  subsequent  authorisa 

19  161  U.  S.  646.  (transfer    of    fineinnati    roHeffC    to 

••i»>  161  U.  S.  677.  Cincinnati   University),   and   Graded 

21  Winchester,  etc.,  Turnpike  School  District  v.  Trustees  95  Ky. 
Road  Co.  V.  Croxton,  98  Ky.  739,  436  (changing  seminary  to  conimnn 
33  L.  R.  A.   177.  school,  Init  there  tlH>  diartcr  granted 

22  That  a  reservation  of  power  a  perpetual  appropriation  of  the 
does      not      justify      a      substantial  trust  to  seminaries). 

change  in  an  educational  trust,  held  -3  Under     many     constitutions     no 

in    Webster    v.     Cambridge    Female  irrevocable    grant    of    sjiecial    privi- 

Seminary,  78  Md.  193  (changing  fe-  leges   or   immunities   may   be   made, 

male    into    mixed    school);    Ohio    v.  so   Illinois   II,   14. 
Neff,  52  Oh.  St.   375,  40  N.  E.  720 


364  COEPOKATIONS.  §  362 

tion  of  a  railroad  viaduct  ;2^  a  charter  right  to  charge  reason- 
able rates  or  to  establish  rates  by  bye-laws  does  not  prevent 
subse(iuent  legislation  regulating  rates  ;-^  and  an  exemption 
from  taxation  where  the  corporation  renders  no  equivalent  in 
the  nature  of  a  consideration,  will  be  treated  as  a  revocable 
license. 2<5 

While  thus  the  charter  contract  theory  is  weakened,  first, 
l)y  the  refusal,  if  possible,  to  recognise  a  contract  or  vested 
right,  second,  by  the  subjection  of  the  contract  to  the  opera- 
tion of  the  inalienable  police  power  in  the  interest  of  safety, 
order  and  morals,  and,  third,  by  the  implied  reservation  of  a 
continuing  power  of  non-destructive  regulation,  the  Supreme 
Court  has  on  the  other  hand  in  a  number  of  cases  expressed 
its  opinion  strongly  to  the  effect  that  even  the  reserved  power 
to  alter  and  repeal  charters  cannot  be  so  exercised  as  to  de- 
stroy substantial  property  rights  which  are  independent  of 
special  privilege  or  corporate  capacity,  or  to  divert  them  from 
their  original  purpose,  since  that  would  amount  to  depriving 
the  members  of  the  corporation  or  its  beneficiaries  of  property 
without  due  process  of  law.  Thus  it  was  said  in  Greenwood 
v.  Union  Freight  R.  C. :-"  "Personal  and  real  property  ac- 
(piired  by  the  corporation  during  its  lawful  existence,  rights 
of  contract,  or  choses  in  action  so  acquired,  and  which  do 
not  in  their  nature  depend  upon  the  general  powers  conferred 
by  the  charter,  are  not  destroyed  by  such  a  repeal,  and  the 
coui'ts  iiiiiy.  11'  the  l('iiisl;i1ui'('  docs  not  ])rovide  some  special 
remedy,  enforce  such  rights  ])y  llic  nic-ius  williin  llicir  power." 
In  that  case  it  was  held  that  the  railroad  ('omi)any  retained 
its  rolling  stock,  horses,  stables,  th(^  delits  'due  to  it,  and  the 
funds  oil  hand,  but  lost  the  riglil  to  cuinhcr  tlie  str(H^ts  with 
tracks  which  il  liad  no  longi'i-  the  right  to  use  Similar  (^x- 
j)ressions  are  to  be  found  in  other  cases ;2^  and    il   should   ln' 

-1  I'ru|irict(>is    of    I'.ri<lt;cH    v.    Ho-  Millrr    v.    New    'SOrk,    If)    \V:ill     ITS; 

linkfii     \/.n\'\    \     liii|iruv('in(Mit    Co.,    1  ('(iiiniioiiw  cult  li   v.    IOhhox  ("d.,  1 :?  (Iniv 

\V;ill.    lUi.  ■-'•'!':       "  WIkmi'    under    ])()\v('r     in     ii 

•f'  l(iiilr<i:iil   ('(I.    V.    lowii,   '.tl    V.   S.  rlmitcr     iii,r|its     liiivc     hccn     iiciniircil 

l.'i.');    Ifn^trlr't    V.    IIIiimiH,    10S   U.    S.  ;iii<i    hcinmc    vcslcil,     im    ;im(Mi(lniont 

r,'j(',  ur     .iltcrMlinii     (if     tlic     clKirter     ('!in 

-"Cniml     I.ihI^c    v.     New    ()rlr:itis,  liikc    .-iwiiy     llic    jji-nperly    or     rijj;lits 

1(50  r.  S.   14;^.  wIi'h'Ii    Imvc    iiccoiiip    vcs1c<|    uinlcr    a 

-7  i(».')  IT.  s.  i:'..  I(•^itim,•lll•    exerciflc    nf    Hh'    powers 

-•HHhic'i.lH   V.   Oiii...   <).')   U.   S.    :il!t;  ^ninl.'.!. " 


§  363  PRESENT  STATUS  OF  CONTRACT   THEORY.  3(^5 

observed  that  iiiaiiy  of  tlic  statutes  and  charters  reserviiif,'  the 
power  of  amendment  and  refx^il  make  an  express  exception 
in  favor  of  vested  rights.^"' 

The  Court  of  Appeals  of  New  York  has  even  said:  "An 
express  reservation  by  the  legislature  of  power  to  take  away 
or  destroy  property  lawfully  acquired  or  created  would  neces- 
sarily violate  the  fundamental  law.  "-"^'^  If  this  is  sound  law— 
and  it  seems  to  be  sound  in  principle— it  woukl  follow  tliat 
the  giving  effect  to  express  reservations  over  charter  powers 
such  as  were  involved  in  the  Dartmouth  College  Case,  can 
only  be  justified  upon  the  consideration  that  such  powers 
should  never  have  been  treated  as  vested  rights  or  as  resting 
in  contract. 

§  363.  Present  effect  of  Dartmouth  College  decision.— The 
courts  have  thus  modified  both  the  original  doctrine  in  .so 
far  as  it  might  be  used  to  hamper  legitimate  state  control, 
and  its  attempted  nullification  through  the  reserved  power  over 
charters,  in  so  far  as  the  latter  might  be  used  to  destroy 
vested  rights,  with  the  result  of  leaving  the  law  very  much 
where  it  would  be  if  there  were  no  Dartmouth  College  Case. 
This  view  is  in  accordance  with  the  statement  made  by  Justice 
Bradley  in  a  dissenting  opinion  delivered  in  the  Sinking  Fund 
Cases,^^  to  the  effect  that  the  reservation  of  the  power  to  repeal, 
etc.,  merely  places  the  state  back  upon  the  platform  which  it 
would  always  have  occupied,  had  the  doctrine  of  the  Dart- 
mouth College  Case  never  been  propounded ;  and  the  same 
opinion  is  expressed  by  Judge  Cooley  in  Detroit  v.  Plank 
Road  Co.32 

Still  some  difference  remains :  Under  the  reserved  power 
the  corporate  existence  may  be  terminated, ^-"^  or  the  gov- 
erning body  be  changed,^^  which  could  not  l)e  done  un- 
der the  contract  theory  ;^^  without  a    reservation    the    grant 

-n  See    Stimson    §    44.3,    Arkansas  •■!:*  Greenwood   v.   Freight   Co..    lO.'j 

Const.    12    §    6,    Colorado    Const.    15  U.  S.  13. 

§    3:    "provided    that    no    injustice  34  Miller   v.    New    York,    15    Wall 

shall  be  done  to  the  corporators."  478;  Atty.  Gen.  ex  rel.  Dusenbury  v. 

30  People   V.    O'Brien,    111    N.    Y.  Looker,  111   Mich.  498,  56  L.  R.  A. 

1  p.  51 ;  see  also  to  same  effect  dis-  947;  Looker  v.  Maynard,  179  U.  S. 

senting    opinion    in    Miller    v.    New  46;     Gregg    v.     Grauby     Mining    & 

York,  15  Wall  478.  Smelting  Company,  164  Mo.  616,  65 

3199  U.  S.  727.  S.  W.  312. 

32  43  Mich.  140.  35  Dartmouth  College  Case,  4  Wh. 

518. 


366  COKPOKATlOxNS.  §  3(33 

of  a  mouopoly  is  irrevocable,^^  and  the  same  is  true  of 
exemption  from  taxation  •,'^''  while  under  the  reservation 
the  exemption  may  be  revoked.^*^  The  court  in  these  cases 
availed  itself  of  the  theory  of  reserved  powers  in  order  to  allow 
the  abrogation  of  a  class  of  rights  which  is  contrary  to  public 
policy.  Under  the  reserved  power  rates  may  be  regulated 
from  time  to  time,^''  while  it  has  been  intimated  that  a  charter 
right  to  charge  certain  rates  is  in  the  absence  of  a  reserva- 
tion irrevocable ;  for  the  legislative  power  over  rates  is  only 
recognised  "unless  restrained  by  charter;"^'*  or  "unless  in  un- 
mistakably clear  language  the  state  has  indicated  a  deliberate 
purpose  not  to  interfere  in  all  times  to  come."^^  It  would 
thus  appear  that  while  the  state  cannot  contract  away  the 
police  power  for  the  protection  of  safety,  health  and  morals, 
it  can  contract  away  the  power  to  protect  the  people  from 
rates  which  in  course  of  time  may  become  oppressive  (except 
by  the  exercise  of  the  power  of  eminent  domain)  ;  but  as  a 
matter  of  fact,  it  has  nearly  always  been  held  that  the  state 
did  not  contract  away  the  power.-* ^  And  as  the  power  to 
amend  is  now  almost  universally  reserved,  the  principle  of  con- 
tinuing control  with  due  regard  for  vested  rights  has  for 
practical  purjioses  well-nigh  supcrsedcnl  the  doctrine  of  the 
Dartmouth  College  Case. 

As  a  result  of  this  development  there  is  now  little  con- 
stitutional difference  between  corporations  and  individuals, 
excej)1  ill  so  far  as  the  gi'iici-al  law  under  which  the  corpora- 
tion is  organised  imposes  special  restraints  or  methods  of  con- 
li-ol  as  conditions  precedent  to  the  iMLilit  to  iiu-oi-porate.  The 
(•()rp()ration,  once  it  is  organisetl,  and  siihjccl  to  the  existing 
cori)oration  laws,  enjoys  ample  constitutional  protection.  "It 
is  now  settled  that  corporations  are  ])ersons  within  the  mean- 
ing  of   the   constitutional    pi'ovisions   forbidding   the   (l('|)iMva- 

•'"••  The      ItiiiKliamton       Hrid^r.      :?  •"  Ku^rt,'l('s    v.    Illinois,    lOS    U.    S. 

Willi    ."il  ;    X.    ().    (las    Li^jlit    Co.    v.  ." J() ;      Iv'ailioail     ( '(HiiiiiisHiun     Casrs, 

LoiiiHiana   lAnUt  &  ir«'at  Co..    11")  (T.  ]]{\  U.  H.  IWT. 

S.   H.'.d.  "  WincliOHtcr  &c.   Turnpike  Co.   v. 

■17  |'i(|ii:i    I'.rancli   ..J'  Stnir   I'.ank   v.  Croxton,    W    Ky.    T'M),    :V.\    I;.    M.    A. 

Kroop,   l»i   Mow.  :i()'.i.  177. 

3"  Totnlin.Mon    v.    .fosHnp.     1".    W.ill  ^-Hnc,    liowovcr,     Ditroit     v.    Citi- 

454.  /imih'   Strrcl     Iiailway    Company,    I'^t 

■"•  Hiiit'i.JH  V.  oiiic.  '.•:.  r.  s.  y.i'.t;     r.  s.  :{(iN. 

I'urkcr    V.    Motropolitan    K.     K.    Co., 
109  MuHH.  TjOfi. 


§363  J'KESKNT  STATUS  OF  CUNTKACT   TIIKOKV.  ■^^^'J 

lion  of  property  without  due  pi-ocess  of  law,  as  well  as  a 
denial  of  the  equal  i)rotection  of  the  laws. "^•*  In  hardly  anv 
of  the  cases  in  which  the  United  States  Supreme  Court  has 
nullified  state  legislation  affecting  railroad  companies:  regu- 
lating rates,  or  imposing  special  lia])ilities,  or  coiupclling  th.- 
issuing  of  mileage  tickets,  has  the  corporate  character  of  the 
railroad  company  had  any  controlling  effect  ui)on  the  de- 
cision; and  the  court  discusses  the  question  of  constitutional 
right  and  power,  as  if  the  authority  of  the  state  were  hardly 
affected  either  by  the  existence  of  the  charter  contract  or  by 
the  reserved  power  to  alter  or  amend  the  charter.  The  court 
looks  through  the  corporation  to  the  individual  shareholders 
who  have  invested  their  money  in  a  business  affected  with  a 
public  interest,  but  who  have  not  otherwise  by  accepting  a 
corporate  character  forfeited  the  constitutional  protection  of 
their  interests.  "The  poAver  to  enact  legislation  of  this  char- 
acter cannot  be  founded  upon  the  mere  fact  that  the  thing 
affected  is  a  corporation,  even  when  the  legislature  has  power 
to  amend  or  repeal  the  charter  thereof.  The  power  to  alter 
or  amend  does  not  extend  to  the  taking  of  the  property  of  the 
corporation  either  by  confiscation,  or  indirectly  by  other 
means. '  '-^^  And  with  regard  to  public  service  corporations : 
"Under  its  police  power  the  people,  in  their  sovereign  ca- 
pacity, or  the  legislature  as  their  representatives,  may  deal 
with  the  charter  of  a  railway  corporation,  so  far  as  is  necessary 
for  the  protection  of  the  lives,  health,  and  safety  of  its  pas- 
sengers or  the  public,  or  for  the  security  of  property  or  the 
conservation  of  the  public  interests,  provided,  of  course,  that 
no  vested  rights  are  thereby  impaired.  In  other  words,  the 
legislature  may  not  destroy  vested  rights,  whether  they  are 
expressly  prohibited  from  doing  so  or  not,  but  otherwise  may 
legislate  with  respect  to  corporations,  whether  expressly  per- 
mitted to  do  so  or  not.  "^^ 

The  chief  value  of  the  decision  in  tlu>  Dartmouth  College 
Case  lies  in  the  affirmation  of  the  principle  that  the  fact  of 
incorporation  does  not  place  property  or  contracts  of  corpora- 
tions at  the  mercy  of  the  government  ;■**■'  but  it  should  also  be 

43  Covington  &c.  Turnpike  Co.  v.  *•>  Louisville  &  N.  R.  Co.  v.  Ken- 
Sandford,  164  U.  S.  578.  tueky,  161  U.  S.  677,  695. 

"Lake  Shore  &  M,  S.  R.  Co.  v.  ■•"See  especially  pp.  635-63S  of 
Smith,  173  IT.  S.  684,  698.  opinion. 


368  COEPOEATIOAS.  §  364 

noted  that  no  such  power  was  contended  for  on  behalf  of 
New  Hampshire;  see  the  argument  on  page  602:  "It  is  not 
necessary  to  contend  that  it  [the  legislature]  had  the  right 
of  wholly  diverting  the  fund  from  the  original  objects  of  its 
pious  and  benevolent  founders."  The  mischief  of  the  de- 
cision was  the  color  it  gave  to  the  contention  (through  the 
application  of  the  principle  to  legislation  touching  merely 
organisation,  and  by  treating  organisation  as  a  vested  right) 
that  the  fact  of  incorporation  withdraws  the  corporation  from 
the  exercise  of  legislative  power  which,  if  exercised  over  in- 
dividuals, would  generally  be  conceded  to  be  constitutional, 
the  contention,  in  other  words,  that  the  charter  of  incorpora- 
tion is  a  charter  of  exemption  from  powers  of  government 
recognised  as  legitimate  in  the  case  of  individuals.  It  is  this 
last  contention  which  has  been  gradually  overcome  by  the 
progress  of  adjudication.^' 

§  364.  Compulsory  incorporation.^^— In  view  of  the  special 
legislative  power  over  corporations,  it  may  be  asked  whether 
the  law  may  require  that  some  business  shall  not  be  conducted 
otherwise  than  by  corporations.  The  (luestion  was  answered 
in  the  affirmative  in  Pennsylvania,  where  this  requirement  was 
created  with  regard  to  the  insurance  business.^'*  The  court 
ba.ses  its  decision   upon  the   ground   that  a   fair  measure  of 

'"  It  may  well  be  admitted  that  general  legislation,  since  it  was  be- 
forporate  charters  should  not  be  yond  federal  cognisance.  As  to  dis- 
siilf.jected  to  special  acts  of  inter-  tinction  between  legislative  and  ju- 
lerence  by  the  legislature;  but  the  dicial  power  in  dealing  with  corpo- 
logical  prere(|ui8ite  would  be  that  rate  charters  compare  Kailroad  Com- 
charters  should  not  be  granted  by  missioners  v.  Portland,  &c.,  E.  Co., 
Hjfccial  acts.  Tliis  is  now  recogiiiscMl  (53  Me.  1269,  and  State  v.  Noyes,  47 
as  a  general  j)rin(iple  of  constitu-  Me.  l.Si),  with  Eoxbury  v.  Boston, 
tional  poli<'y.  The  prohibition  of  etc.,  R.  Co.,  6  C!usli.  424,  and  Corn- 
special  legislation  removes  the  dan-  monwealtli  v.  I-^astern  E.  Co.,  103 
gcr  of  meddlesome  interference  witli  Mass.  ':1')4.  Also  as  tn  legislative 
charters  to  a  great  extent;  and  the  jiower  In  declare  forfeiture  without 
recognition  of  the  i)ower  of  altera-  .jinliiial  procec<ling8  under  a  rc- 
tion  by  general  act  merely  saves  a  served  power  to  rei)eal :  McLaren  v. 
h'gifimate  continuing  control  of  the  Penninglon,  1  P:ii.  101;  Krie,  &c.,  E. 
state  over  coriKirations  in  accord-  '"o.  v.  Casey,  20  I'a.  St.  287;  (Veaso 
since  with  the  [irogress  of  general  v.  Habcock,  23  Pick.  334;  Myrick  v, 
legislative  pfdicy.  The  Sii|>rcme  Hrawley,  33  Minn.  377. 
Court  in  the  Darfmoutli  ('..llr^c  <*<  See,  also,  §  1.1(1-444. 
Ca.se  had  no  occasion  to  coiisidc'-  '•' < 'nnimonwcallh  v.  Vrooman,  HJl 
thi«  distinction  between  special  and  I'.i.  306,  25  L.   K.   A.  250. 


§  364  COMPULSORV  INCORPORATION-.  3^9 

fidelity  can  be  compelled  only  when  tlic  business  is  in  the 
hands  of  corporations,  since  private  individuals  cannot  Ix- 
compelled  to  disclose  their  business,  financial  condition,  etc. 
But  if  incorporation  allows  a  larger  than  the  ordinarily  ad- 
missible measure  of  state  control,  it  does  so  on  tin-  thi-urv 
of  a  special  license  to  which  conditions  are  annexfd.  To  say 
"You  must  ask  for  special  privileges;  then  by  reason  of 
these  special  privileges  you  must  submit  to  special  regula- 
tions," is  equivalent  to  saying:  "You  must  submit  to  six-eial 
regulations. ' '  The  real  question  must  therefore  be :  does  the 
business  admit  of  special  regulation  ?  If  it  does,  the  regula- 
tions may  be  imposed  on  individuals,  associations  and  corpora- 
tions alike.  The  state  may,  however,  also  compel  incorporation, 
if  that  is  the  most  convenient  form  of  control,  provided  that 
facilities  for  incorporation  are  extended  to  all,  including 
single  individuals.  Compulsory  incorporation  is  a  conse- 
quence of  the  special  control,  not  vice  versa.  If,  however, 
the  requirement  of  incorporation  has  the  effect  of  excluding 
any  one  from  the  business,  it  can  be  sustained  only,  if  the 
nature  of  the  business  is  such  that  it  may  be  restricted  to 
select  persons,  or  be  made  a  monopoly.  This  fact  was  recog- 
nised in  two  cases  arising  under  statutes  of  North  Dakota 
and  South  Dakota,  restricting  the  business  of  banking  to  cor- 
porations. The  Supreme  Court  of  North  Dakota  in  a  brief 
opinion  upheld  the  law,  because  private  banking  might  be  pro- 
hibited altogether.^''  The  South  Dakota  court  in  an  elaborate 
opinion  held  that  the  statute  could  not  prohibit  any  citizen 
from  entering  upon  a  business  not  injurious  to  the  comniunitx-. 
though  affected  by  a  public  interest,  and  was  therefore  un- 
constitutional.^ ^ 

50  state  ex  rel.  Goodsill  v.  Wood-         si  State  v.  Scougal,  3  S.  D.  55.  15 
mansee,  1  N.  D.  246,  11  L.  E.  A,  420.      L.  R.  A.  477. 


24 


CHAPTER     XVII. 
FREEDOM  OF  PROPERTY.— PERPETUITIES. 

^  365.  Legal  policy.  — The  freedom  of  property  from  con- 
ventional restraints  and  burdens  is  of  considerable  political 
as  well  as  economic  importance.  The  imposition  of  restraints 
upon  the  alienation  of  lands  or  other  property  is  a  common 
device  for  keeping  acquired  wealth  in  the  family  of  the 
founder,  and  the  perpetuation  of  wealth  in  the  same  families 
tends  to  produce  an  aristocracy.  All  burdens  and  restraints 
on  property  moreover  prevent  its  free  circulation  and  its 
being  put  to  the  most  productive  uses,  especially  where  such 
uses  are  attended  with  risk  to  the  owner,  and  exclude  or  retard 
the  process  by  wliieli  property  gets  into  the  hands  of  those 
most  competent  to  manage  it. 

The  natural  desire  of  the  owner  to  rctnin  over  his  property 
a  control  of  the  longest  possible  duration,  however  much  in 
accordance  with  class  interest,  has  therefore  generally  been 
felt  to  be  contrary  to  public  policy.  As  a  (piestion  of  the 
right  of  ownersbip  it  is  clear  that  the  fullest  recognition  of 
the  claims  of  tbe  owner  would  enable  him  to  bind  the  property 
in  the  hands  of  oIIkts,  while  the  permanent  exemption  of 
l)roperty  I'lom  l)iir(iiMis  jiikI  restraints  can  be  attained  only  by 
restraining  his  powei-  oi'  control.  TIh'  claim  of  fi-eedom  of 
owiiefshi])  may  thus  be  taken  in  two  opposite  senses,  and  the 
most  in<li\  iilualistic  conception  of  right  may  here  as  in  other 
cases  logicall\-  lead  to  the  destrnetion  or  impairment  of  in- 
•dividnal  lilx'iMy.  Here  as  elsewhere  the  most  i)eri"ect  realisa- 
tion of  liberty  rests  u])on  its  i-easonable  restraints. 

The  establishment  of  the  policy  of  Ireedoiii  through  limita- 
tions of  t  hr  owner  s  powi'i'  of  coiit  i-olliii<_;  |»foperly  in  the  hands 
of  his  donees  or  grantees,  has  been  iliie  part  ly  to  I  he  courts  and 
partly  to  Ihr  leu-jslat nre.  In  MnLilaml  the  eoui'ls  have  genei'ally 
inelitu'd  towiirds  Tree  circulation  of  pi'opertv.  ;ind  the  necessary 
ruieK  tor  tlir  pni-pose  have  Itecoine  imhodird  in  the  coniiuon 
law;  to  SOUK'  extent  legislation  has  conlirnied  oi-  emphasised 
the  policy.  liCjislat ion  beitiLr  in  accordance  with  the  s])irit 
of  the  (•(iiiiiiion  law.  the  (piestion  of  const  it  ul  ioiial  power  has 
Iteen  h;ir<lly  discussed,  it   In-iug  assumed  iis  a   nuilter  of  course 

:{7(» 


§  36G  TYING  UP  PROPERTY.  ;J71 

that  the  traditional  Jimitatioiis  of  ownership  eannot  Ik-  con- 
trary to  the  constitutional  guaranties  of  liberty  or  property. 
It  will  be  sufficient  here  to  mention  very  briefly  the  prin- 
cipal rules  of  the  common  law  bearing  upon  the  matter— an 
extended  discussion  of  their  complicated  details  being  beyond 
the  scope  of  this  treatise' — and  to  set  forth  the  most  notable 
statutory  enactments  in  aid  of  the  same  policy,  together  with 
their  constitutional  aspects. 

§  366.  Devices  for  tying  up  property— Civil  law.  — There 
is  a  distinction  between  restraints  on  alienation,  which  at- 
tempt to  make  impossible  or  void  the  sale  of  an  interest  by_ 
its  holder,  and  perpetuities,  which  are  settlements  of  estates 
l)y  executory  limitations  preventing  or  unduly  postponing 
the  vesting  of  an  interest.^  For  our  purposes,  perpetuity  may 
l)e  used  as  a  convenient  term  to  designate  devices  for  tying  up 
land  or  other  property  in  the  hands  of  its  holders  for  one  or 
more  generations  or  perpetually. 

In  the  Roman  law  this  object  was  accomplished  in  varying 
degrees  by  the  ususfructus,  the  pupillary  substitution,  and 
above  all  the  fideicommissum  or  trust. ^  Justinian  provided 
that  property  bequeathed  upon  trust  that  it  should  remain 
in  the  family,  should  become  free  in  the  fourth  generation.^ 
In  France  the  creation  of  future  interests,  known  as  sub- 
stitutions, was  in  the  ante-revolutionary  times  regulated  by 
royal  ordinances,  especially  that  of  1747;  but  substitutions 
were  prohibited  in  1792  as  contrary  to  the  spirit  of  the  new 
constitution,^  and  the  prohibition  (sub.ject  to  certain  excep. 
tions  in  favor  of  grandchildren,  nephews  and  nieces,  and  also 
to  exceptions  subsequently  abrogated  in  favor  of  noble  fam- 
ilies), was  embodied  in  the  Code  civil.*'^  The  French  law  of 
substitutions  has  been  adopted  in  Louisiana."  In  Germany 
(^ntailed  family  settlements  are  provided  for  l)y  the  laws  of 
the  several  states,  and  generally  require  special  authority, 
sometimes  from  the  sovereign.  In  Austria  they  require  a 
special  enabling  act  of  the  legislature.     These  state  laws,  in 

1  See  Gray,  Restraints  on  Aliena-  s  Laws   of   Oct.    25   and   Nov.    14. 

tioii;   Rule  against  Perpetuities.  1792. 

■^Graj,  Rule  against  Perpetuities,  «  §  896,  897,  1048  and  1074. 

gee    2.  "Louisiana  Revised  Code  §   1520; 

•■5  Dig.  31,  1  67  §  5,  1  69  §-3.  see  Gray  Perpetuities  §  766-772. 

4  Novel  159. 


372       FEEEDOM  OF  PROPEKTY.- PERPETUITIES.      §  367 

Germany,  are  left  in  force  by  the  civil  code  of  1900,^  which 
otherwise  provides  as  a  general  rule  that  a  remainder  cannot 
be  limited  to  take  effect  at  a  time  later  than  thirty  years 
after  the  testator's  death,  unless  it  is  limited  upon  an  event 
happening  to  a  particular  tenant  or  remainderman  who  is 
living  at  the  death  of  the  testator.*^ 

§367.     Common    law— The    rule    against    perpetuities.^"  — 

In  the  English  law  the  policy  against  perpetuities  has  been 
developed  by  the  courts,  without  assistance  from  the  legisla- 
ture. Parliament  attempted  to  sanction  perpetual  settlements 
by  the  statute  of  Westminster  11,^^  the  act  under  which 
estates  in  fee  tail  have  been  created.  It  is  not  certain 
how  long  the  statute  was  given  full  effect  in  making  estates  in- 
alienable; in  1472  or  1473^2  ^q  flnd  the  proceeding  of  com- 
mon recovery  fully  established,  through  Avhich  the  tenant  in 
tail  by  the  aid  of  cuimous  fictions  was  enabled  to  convey  a 
fee  simple. i*^ 

Contingent  remainders,  being  destructible  by  the  tortious 
termination  of  the  particular  estate  before  the  contingent  re- 
mainderman was  ascertained  or  came  into  existence,  could 
not  be  effectually  used  for  tying  up  property.^ ^  The  develop- 
ment of  equitable  estates  made  it  possible  to  create  future  in- 
terests through  sliifting  uses  and  executory  devises,  which 
were  not  liable  to  such  destruction,  and  the  form  of  settle- 
ment of  estates  commonly  arranged  for  in  comtemplation  of 
marriage,  is  said  to  have  been  invented  in  the  time  of  the 
Protectorate.*'^  It  was  shortly  thereafter  that  the  so-called 
rule  against  perpetuities  began  to  assume  its  present  form,'" 
and  in  the  Duke  of  Norfolk's  case,  168,^),  llic  test  of  lives  in 
being  was  definitely  establislied.  The  v\\\r  \\;is  finally  settled 
ill  (';i<l<ll  V.  I'alnn'i-'"  as  follows:  \o  limitation  of  a  contingent 
futufi-  interest  upon  a  jirior  interest  is  valid,  unless  such 
future  interest  must  vest  at  a  time  not  later  than  the  expira- 
tion of  any  number  of  specified  lives  in  being  at  the  time  the 
inferf'st    is  crcafcd.  or  within   Iwcnty-onc  years  1hereaft(>r,  to 

"  hitrofhictory  Act,  Art.  r><».  >•'' liljickslonc  II   .S.'iT-O. 

"Civil  (-'ode  §  2109.  i*  Gray,  Rule  againnt  Perpetuities 

i"Sco,  alHo,  §  .'Sni.  1.14,  '2Hr). 

11  ILIHr)    Rtatutc    (1(«    DoniB    ron.li-  "f.  Pollock    L.-iiid    L;nvH,    ]>.    111. 

tionalihuB.  '"(Iniy,   Sec    IfiiMTO. 

>2  12  E<l.   IV,  Taltarum's  cane.  '^  1    CI.  &  p.  .372,  1833. 


§  ;}G7  RULE  AGAl.XHT  PEKPETUITIES.  373 

which  period  (in  case  of  a  minority)  the  time  of  the  gestation 
of  an  infant  may  be  added.  Professor  (!ray  states  the  rul<' 
as  follows  :^^  "no  interest  subject  to  a  condition  precedent  is 
j^ood,  unless  the  condition  must  be  fulfilled,  if  at  all,  within 
twenty-one  years  after  some  life  in  being  at  the  creation  of 
the  interest."  The  rule  against  perpetuities  has  been  adopted 
in  the  United  States  as  part  of  the  common  law.'-'  In  some 
states  it  has  been  attempted  to  give  the  rule  statutory  ex- 
[)ression,  without  any  radical  change.'*^"  In  New  York  the 
period  for  which  property  may  be  tied  up  is  two  lives  in  being 
at  the  creation  of  the  estate,  with  provision  for  minority.-' 
This  change  of  the  rule,  with  regard  to  real  property,  has  l)een 
adopted  in  Michigan,  Wisconsin,  and  Minnesota  ;22  Alabama 
makes  the  term  three  lives  plus  ten  years.^^  In  New  York 
the  tying  up  is  called  suspension  of  the  power  of  alienation, 
and  means  that  there  are  no  persons  im  being  by  whom  an  ab- 
solute fee  in  possession  can  be  conveyed.^'* 

Estates  tail  were  likewise  introduced  from  England  to 
America.  In  many  states  they  have  been  changed  into  estates 
in  fee  simple,^^  in  others  (e.  g.  Illinois)  into  life  estates  in  the 
first  taker  with  remainder  in  fee  simple  to  those  next  entitled 
to  take.  As  the  tenant  in  tail  can  convey  a  fee  simple,  the 
estate  tail  does  not  create  a  perpetuity,  and  the  changes  ef- 
fected in  the  various  states  have  not  been  of  a  radical  nature. 

Closely  connected  with  the  question  of  perpetuities  is  tliat 

18  Sec.  201.  tendency  in   this  country   to   regard 

19  Gray,  Sec.  200;  Chilcott  v.  the  inalienability  rather  than  re- 
Hart,  23  Col.  40,  35  L.  E.  A.  41.  nioteness  of  vesting  as  the  test  of  a 

^oGray,     Sec.     735-74G:     Georgia,  perpetuity.     This  appears  especially 

Iowa,   Kentucky,   Connecticut,   Ohio,  in   the  validity  of  remote  rights  of 

Indiana,  Mississippi.  entry  for  condition  broken  and  pos- 

21  E.  St.  II  1,  2  Sec.  15,  16;  Eeal  sibilities  of  reverter.  Gray  §  299- 
Property  Law  §  32;  Gray,  Sec.  747-  313. 

50.  25  See    Stimson    See.     1313.     The 

22  Gray  §  751.  earliest    statute    abolishing    estates 

23  Gray,  §  742.  tail  is  that  of  the  Province  of  South 

24  Eeal  Property  Law  §  32.  So  Carolina  of  April  9,  1733  (Statutes 
also  Michigan,  Wisconsin,  Minne-  III,  p.  341),  providing  that  "  noth- 
sota;  Gray  §  751.  See  Gray  §  728-  ing  herein  is  to  make  the  statute  de 
752  on  American  legislation.  As  to  donis  in  force  in  this  province  or 
distinction  between  suspension  of  to  make  estates  which  were  or  arc 
power  of  alienation  and  remoteness  fee  simple  conditional  at  the  c.uu- 
of  vesting,  see  Gray  §  140  and  chap,  mon  law  estates  in  tail  in  this  prov- 
VII.      There    does    seem    to    be    a  luce." 


374  FREEDOM  OF  PKOPEETY.-PEEPETUITIES.  §  368 

of  accumulations,  which  rehites  to  income  and  has  therefore 
no  direct  bearing  upon  real  estate.  The  English  Thellusson 
Act  of  1800  made  directions  for  accumulation  for  a  longer 
period  than  the  lives  of  the  settlers,  or  for  longer  than  twenty- 
one  years  after  their  death,  or  than  any  minority,  void.-^  Some 
American  states,  notably  New  York  and  Pennsylvania,  have 
adopted  similar  provisions  against  accumulations.-'^ 

No  constitutional  question  has  been  raised  with  regard  to 
laws  against  perpetuities.  The  prohibition  of  a  perpetuity 
invariably  acts  upon  the  devolution  of  property  after  death 
which  is  subject  to  a  very  ample,  if  not  absolute,  legislative 
eontroL^J^  The  laws  against  perpetuities  in  other  words  do  not 
take  property,  nor  do  they  even  regulate  its  use  in  the  hands 
of  the  owner.  If  statutory  legislation  in  this  matter  be  re- 
garded as  falling  under  the  police  power,  such  exercise  of  the 
police  power  is  in  perfect  conformity  to  the  spirit  of  the  com- 
mon hnv. 

i;  368.  Mortmain  legislation  in  England.-^  — The  term  mort- 
main was  originally  confined  to  the  holdings  of  the  church, 
and  was  later  on  extended  to  other  corporations.  A  corpora- 
tion may  be  perpetual,  and  its  purposes  are  iixed ;  therefore 
its  property  is  virtually  held  in  perpetuity ;  for  though  it  may 
convey  this  or  that  particular  piece  of  property,  yet  its  estate, 
as  an  entirety'  and  disregarding  changes  of  form,  is  tied  to 
permanent  purposes.     The  same  is  true  of  charitable  trusts.^" 

As  the  cor[)oration  is  free  of  the  incidents  of  physical  per- 
sonality, feudal  holdings  wliiili  fell  into  corporate  hands  were 
disadvantageous  to  the  lord  who  lost  the  valuable  profits  in- 
cidental to  iiiiiri-iage,  infancy  and  dealli.  This  was  the  occasion 
for  the  ciKict  iiHiil  ol"  statutes  of  mortmain,  forbidding  the 
alienation  of  hinds  1o  i-cligious  lionscs  and  other  corporiilions 
the  first  of  wliieh  dates  of  (i  Edwai'd  I  1278,  and  is  the  earliest 
fif  tlie   I'Jiglish   slalutes  sfill   reganh'd   ;is  of  praetical    utility. 

2n(Jray,  Sc<-.  08(5.  lu'l     iipiin    Hpccific,    trusts,    is    jilicn- 

-T  (Jray,  S'X-.  715;   Now  York  EonI  iihic;     property    held     upon    spocific 

Propfrty    Law,   §   51.  diari table    truHts,    wliolhor    by    cor- 

2"  United    States    v.    Perkins,     Hi.'?  porations    or    trnstees,    is    alienable 

'  U,  S,  0'J5;   Koeliersperjjer  v.    Draki',  \>y  onlcr  of  a   fonrt    (Lewin   Trnsls, 

107  III,   I'JL',  41    I-.   H.  A.  ■\U>,    17   N.  |i.    5:{!l),    unless    tlic    ^ifi    is    liy    its 

E.  3L'1.       ,  terms    subjeet    to    condition     subse- 

s"  Hce,  also,  S  .iniiHO.^.  quent    or    deterniinabic    upon    eesser 

^"  I'roperty    lield    by    corporations,  nf  ilic   p.ulirnlur  use. 


§361) 


MOKT.MAJ  .\   LEGISLATION. 


375 


Under  Richard  II  these  statutes,  ori<,Miialiy  cunlined  to  Un- 
church, were  extended  to  lay  corporations. •'•  lieiii^^  passed 
primarily  for  the  benefit  of  the  Kinf^-,  the  Kinj;  iiad  jxnver  to 
relieve  from  their  operation,  and  this  was  done  by  so-called 
licenses  in  mortmain.  AVhen  corporations  came  to  receive 
formal  and  technical  charters  of  incorporation  (from  the  time 
of  Henry VI),  a  license  in  mortmain  became  a  regular  feature 
of  such  a  charter,  and  upon  this  license  rests  the  right  of  cor- 
porations in  England,  to  hold  land  free  from  the  liL'ht  of  the 
lord  or  King  to  enter.  The  power  to  take  or  hold  personal 
property  was  never  limited. 

Trusts  for  charities  not  vested  in  corporations  as  tr\istees, 
though  likewise  perpetual,  were  not  included  in  the  statutes 
of  mortmain,  and  were  favored  in  equity.  It  was  only  in 
1736  that  gifts  of  lands  (not  personal  property)  to  charitable 
uses  Avere  subjected  to  formal  restrictions.-^^ 

§  369.  Mortmain  legislation  in  America. •'■^  — In  America  the 
power  of  corporations  to  hold  real  property  is  regulated  by 
statute,  the  usual  provision  being  that  they  may  hold  what 
is  necessary  for  their  corporate  purposes.  This  limitation  is 
inherent  in  the  nature  of  corporate  capacity,  and  can  liai-diy 
be  said  to  represent  a  distinct  mortmain  policy,  which,  indeed, 
is  entirely  unsuited  to  many  classes  of  business  corporations. 
Railroad  corporations  are,  next  to  the  United  States  and  state 
governments,  the  largest  landholders  in  the  country. 

With  regard  to  corporations  organised  for  religious  and 
benevolent  purposes,  the  laws  of  the  different  states  show  a 
distinct  policy  to  prevent  an  undue  accumulation  of  property 
and  especially  of  land.  Thus  a  number  of  states  limit  the 
power  to  take  by  will;  the  constitution  of  Mississippi  forbids 
devises  of  land  or  interests  therein  for  religious  or  charitable 
purposes  entirely  ;2^  Pennsylvania  has  re-enacted  in  substance 
the  provisions  of  the  English  statute  of  1736  extending  it  to 
personal  property. ^^  New  York  limits  the  amount  that  may 
be  taken  under  the  will  of  a  testator  leaving  a  wife  or  child 
or  parent,  relatively  to  his  estate. ^^^  Moreover,  a  number  of 
states  limit  absolutely  the  total  amount  which  ;i  religious 
society  may  hold,  either  by  fixing  a  maximum  acreage  of  land 


31  15  Eic.  II,  cap.  5,   1392. 

32  Stat.  9  Geo.  II,  ch.  26. 

33  See,  also,  §  594-601. 


3*  Sec.   269. 

3s  Act  April  26,  1855. 

•ifiLaws  1860,  ch.  360  §  1. 


37(3  FREEDOM  or  PKOPEKTY.-PEKPETUITIES.  '§369 

(so  in  Illinois),  or  a  maximum  value  of  property,  real  or 
personal,  or  of  the  income  therefrom.  In  New  York  the  ten- 
dency has  been  to  increase  the  amount  allowed  to  be  held 
($12000  income  in  1875;  $250000  income  or  $3000000  principal 
in  1889;  $500000  income  and  $3000000  principal  at  present)  ;3' 
and  in  Pennsylvania  the  amount  allowed  to  be  held  may  be  in- 
creased according  to  its  purposes  by  order  of  a  court.^* 

Gifts  to  charitable  uses  are  treated  by  the  American  courts 
with  the  same  liberality  as  they  Avere  in  England,  and  of 
course  the  prohibition  of  gifts  to  superstitious  uses  as  under- 
stood by  the  statute  of  Henry  YIII  has  disappeared ;  although 
even  now  some  courts  find  themselves  unable  to  sustain  be- 
quests for  masses  on  the  ground  that  no  beneficiary  is  ascer- 
tainable.3-'  In  New  York  it  was  held  that  under  the  recon- 
struction of  the  law  of  trusts  effected  by  the  Revised  Statutes 
of  1828,  the  English  law  of  charitable  uses  had  been  entirely 
done  away  with,  and  that  charitable  gifts  in  trust  could  Ix' 
made  only  to  corporations  existing  for  that  purpose;^"  but 
by  an  act  of  1893^^  the  legislature  reversed  this  policy  and 
legalised  trusts  notwithstanding  the  indefiniteness  of  bene- 
ficiaries.^- 

The  history  of  the  law  in  New  York  shows  that  the  whole 
matter  of  gifts  to  charities  is  absolutely  within  the  legislative 
power,  unless  controlled  by  specific  constitutional  provisions; 
and  the  same  is  true  of  the  corporate  capacity  to  take  and 
hold  lands.  This  legislative  jjowcr  is  iiol  in  .-my  way  affected 
liv  claims  of  i-cligious  liberty.  'I'lii-  acknowledged  power  of 
restraint  is,  iiowever,  exercised  witii  great  moderation,  and 
the  j)olicy  of  the  legislature  and  of  courts  has  on  the  whole 
been  to  encourage  gifts  foi-  cliaritable  and  l)enevolent  jmrposes. 

•'"General  Corporation   L;i\v,  §    lu,  1-.    1\.    A.    loO;    HoofTi-r    v.    ('I(i)raii, 

an    amoiifled     Laws     1892,    <-h.     687,  171     111.     HiL',     10    I..    IJ.    A.    7:!();    in 

iSiM,  ell.  400.  iNc'w    York    nplicid    a.s   t'lintract,    (iil- 

■"' LawH   IHH:?,  .June-  G.  man    v.    .McAr«il(>,   !)'.)   N.    V.   4.')1  ;    in 

•■"•  MfHnj,'li     V.     McCoic,     '.•7     Wis.  Kan.sas   aa    gift    to   priest,    H.-iirison 

1(5(5,    to    L.    I{.    A.   7-24 ;    Festorazzi    v.  v.   Hropliy,  .^9    Kiins.    1,    K)    !>.    U.  A. 

Hf.    .FoHPpirs    Cafliolif    f'iiiircli,     104  71!!. 

Ala.    ;{U'7,    l^f)    \j.    H.    A.    :^(50;    Story  •'.  llnll:in.l    v.    Allc.rk,    lOH    \.    Y. 

Eijnity   JiiriMpriKlrMifo,    IIOI;    conlni  W}'!. 

M«iran   v.   Moran.    In|    I.,.   _'|(i,  :t!i   I,.  nci,.    7((|. 

K.    A.    I'OI;    Slu-rnian    v.    I'.akcr,    'JO  ej  AIUmi     v.     Slovens,     1(51      N,     Y. 

W.    I.    U(l.    JO    \..    K.    A.    717;    Wr-1.-  I'JL',  .If)   N.    K.  .^.(58. 

»tcr   V.   HuKhrow,  09   N.   H.   380,  48 


§  370  PERPETUAL    RENTS.  3 


I  i 


§  370.  Perpetual  rents. '-i  — Rents  are  at  coiiuikjh  law  incor- 
poreal hereditaments  and  as  such  interests  in  real  estate.  TIk-v 
are  either  incidents  to  feudal  tenure  (rents  service),  or  may 
be  created  irrespective  of  such  tenure  (rents  charjtje  or  rents 
seek).  The  difference  between  the  two  kinds  of  rents  is  tliat 
a  right  to  distrain  inheres  in  the  rent  service,  and  had  to  be 
expressly  reserved  in  the  other  class.  Rents  service  in  Ent;hind 
could  not  be  reserved  on  grants  in  fee  after  1290,  in  conse- 
quence of  the  Statute  Quia  Emptores.  Feudal  tenures  have 
disappeared  in  America  (they  are  expressly  abolishcMl  hy  the 
constitutions  of  New  York,  Arkansas,  Minnesota,  Wisconsin), 
and,  except  in  Pennsylvania,^^  rents  service  issuing  out  of 
estates  in  fee  simple  have  become  impossible.  Perpetual  rents 
charge  can,  however,  be  created  in  nearly  all  states,  although 
they  are  most  unusual.'*^  In  Pennsylvania  where  such  rents 
occur,  the  legislature  in  1869  attempted  to  provide  for  the 
compulsory  redemption  of  existing  irredeemable  rents  at  the 
option  of  the  owner  of  the  land,  but  the  act  was  declared  un- 
constitutional.^*^ The  court  admitted  that  it  would  have  betMi 
within  the  power  of  the  legislature  to  forbid  the  future 
creation  of  perpetual  rents ;  but  this  the  statute  failed  to  do, 
operating  only  on  existing  rents,  and  apparently  assuming 
that  new  rents  were  not  apt  to  be  created.  In  ]Maryland 
ground  rents  are  redeemable  after  fifteen  years.  The  absence 
of  provisions  in  other  states  is  probably  to  be  ascribed  like- 
wise to  the  fact  that  such  rents  are  not  as  a  matter  of  fact 
created ;  in  France  and  Germany  all  rents  are  necessarily  re- 
deemable after  thirty  years,^^  in  Germany  with  a  reservation 
in  favor  of  territorial  laws. 

§  371.  Long  leases.— The  constitution  of  New  York,  while 
saving  rents  created  prior  to  1846,  prohibits  leases  or  grants  of 
agricultural  land,  for  a  longer  period  than  twelve  years,  in 
which  shall  be  reserved  any  rent  or  service  of  any  kind.-*^ 

43  See,  also,  §  589.  aft    of    Pennsylvania    of    1855    de- 

« Ingersoll  v.  Sergeant,  1  Whart.  elaring    ground    rents    to    be    extin- 

337;   see  Gray  Perpetuities,  §  26.  guished    where    no    payment    or    de- 

45  See  Scott  v.   Lunt,   7   Pet.   596.  niand   for  payment   had   been   made 

Leases  in  fee  are  recognised  in  New  for  21  years,  see  Wilson  v.  TsemiMi- 

York    by    statute.       Real    Property  ger,  185  U.  S.  55. 

Law,   §   193,  Laws   1805,   t-li.   98.  ^7  C.   C.   530,   P.   C   B.    1202. 

46Palairet's    appeal,    67    Pa.    St.  ^s  Constn.  1,   14. 
479;   see  Sec.  589,  infra.     As  to  an 


378  FKEEDOM  OF  PKOPEKTY.-PEKPETUITIES.  §  371 

The  same  provision  is  found  in  Michigan,-*'^  and,  with  a  change 
of  the  maximum  term,  in  lowa,^"  JMinnesota,^''  and  Wiscon- 
sin.^- Ahibama  provides  by  statute  that  no  leasehold  estate 
can  be  created  for  a  longer  term  than  twenty  years.  California, 
Nevada,  and  Dakota  limit  leases  of  town  lots  and  build- 
ings to  twenty  years,  of  agricultural  lands  to  ten  years. 

With  reference  to  the  prohibition  contained  in  the  consti- 
tution of  New  York  the  Court  of  Appeals  of  that  state  says: 
"The  theory  of  the  convention  which  prepared  the  provision 
was  that  long  leases  of  agricultural  lands  for  agricultural 
purposes  were  detrimental  to  the  interests  of  agriculture,  be- 
cause the  tenants  had  no  desire  to  improve  by  the  best  method 
of  cultivation,  an  inheritance  which  was  liable  to  pass  from 
them  and  their  descendants  without  a  compensation.  "^^  ^^j^jg 
reasoning  seems  very  peculiar;  for  the  longer  the  leasehold, 
tli(>  more  will  the  tenant  be  apt  to  make  improvements,  and 
it  is  upon  this  theory  that  long  or  perpetual  leases  are  favored 
by  economists.  In  short  leases  there  will  be  no  inducement 
to  the  tenant  to  make  permanent  improvements,  unless  the 
law  secures  him  compensation  therefor  upon  the  expiration 
nt  his  lease;  and  in  Enuland  and  Ireland  such  right  has  been 
in  part  secured  l)y  legislation.^^  In  the  United  States  such 
laws  seem  to  be  unknown.  The  natural  effect  of  the  prohibi- 
tion of  long  agricultural  leases  would  seem  to  be  that  land  will 
not  be  leased  for  cultivation,  but  that  the  owner  will  cultivate 
it  through  hired  labor.  Tills  system  will  tend  to  produce 
small  peasant  proprietors,  and  to  prevent  the  development  of 
a  class  of  great  landlords  and  socially  and  politically  depend- 
ent farmers.  In  this  light  the  prohibition  of  long  leasi^s  a])- 
f)ears  j)iMmaiMly  as  a  measure  of  a  political  character.  Inci- 
dentally it  may,  like  the  abolition  of  primogeniture  and  of 
entails,  prevent  the  accumulation  of  landed  holdings  in  a  few 
hands.  It  is,  however,  to  be  noted  that  in  most  ol"  the  states 
there  is  nothing  to  prevent  the  format  ion  ol'  large  corporal  ions 
Tor  agrienJtnr-al  purposes.  It  seems  also  that  irrigation  eom- 
patdcs   by   oiitaitnng  control    ol"   the   soin-ces   ol"   watei"   supply, 

"18,   2.  ISlC,    pir.L-,    1(1.-);!,    \{hu\;    iM:ih.s,   Nut. 'I 

ft"!,  24;   20  yoarfl.  I'.l<.   v.   Sliiim,    l(i:{   N.    V.   300,  57    N. 

r-J  1,  l.*);   21  yearH,  K.  (ill. 

f-z  1,   11;    }r>  yf.irn.  ro  |.';,u,(.(t    M;inii:il    I'nI.    Ilcoii.    di. 

'■••■'  Htcplicil     V.      Ifc.Vllnl.l.s,  (i     X.     Y.        VII. 

4r>\,      jirliiitcs     I'diiMtl.     (kmvontidu 


^  ;j71  LONG    LEASES.  Ijy.j 

could  in  the  absence  of  regulative  legislation,  reduce  landliold- 
ers  to  a  condition  of  absolute  dependence,  and  make  tlicni  to 
all  intents  and  purposes  rent  paying  tenants;  in  llic  wcsti-rn 
arid  states  water  rights  have  therefore  beconic  tiii-  oljjcct  of 
considerable  legislative  solicitude.^^  A  system  of  perpetual 
rents  and  leases  may,  how^ever,  also  have  its  benelicial  n-- 
sults.  While  at  the  beginning  of  the  last  century,  the  con- 
sideration of  political  and  social  dependence  was  controlling, 
and  legislation  was  therefore  inimical  to  permanent  tenures  of 
that  kind,  an  opposite  tendency  has  set  in  in  recent  years,  and 
rent  paying  estates  (Rentengueter)  have  been  encouraged  by 
statute  in  Prussia.  They  are  intended  to  be  used  for  the  pur- 
pose of  transforming  agricultural  laborers  Into  farmers  on 
their  own  account.  The  German  civil  code,  while  declaring 
rents  in  general  to  be  redeemable,  has  made  a  saving  in  behalf 
of  the  rent  paying  estates  created  under  state   legislation.''" 

55  See  §§  414-417,  infra.  51;  jntrocluctory  act  to  Civil  Code, 

Art.  62. 


CHAPTER   XVIII. 

BUSINESS  AFFECTED  WITH  A  PUBLIC  INTEREST. 

§  372.  statement  of  the  doctrine.— The  doctrine  of  property 
affected  with  a  public  interest  Avas  definitely  formulated  in 
this  country  in  the  case  of  Munn  v.  Illinois.^  The  court  laid 
down  the  principle  that  "when  one  devotes  his  property  to  a 
use  in  which  the  public  has  an  interest,  he  in  effect  grants  to 
the  public  an  interest  in  that  use,  and  must  submit  to  be 
controlled  by  the  public  for  the  common  good  to  the  extent 
of  the  interest  he  has  thus  created."  The  business  affected 
by  the  case  before  the  court  was  that  of  the  storage  of  grain 
in  elevators  in  the  city  of  Chicago ;  the  public  control  exer- 
cised consisted  in  the  regulation  of  charges.  A  number  of 
other  cases  decided  at  the  same  time  (all  these  cases  being 
l<ii(M\n  as  the  Granger  cases)  sustained  similar  control  exer- 
cised over  railroads.  In  support  of  the  doctrine  enunciated 
by  the  court  the  following  passage  from  Lord  Hale's  treatise 
Dc  i'ortibus  ]\raris  is  quoted:  "If  the  king  or  subject  have 
a  public  wharf  unto  which  all  persons  that  come  to  that 
l)ort  unist  come  as  for  the  purpose  to  unlade  or  lade  their 
goods,  because  they  are  the  wharfs  only  licensed  b^''  the  queen, 
according  to  the  statute  of  1  Eliz.  cap.  11,  or  because  there  is 
no  other  wharf  in  that  port,  as  it  may  fall  out  where  a  port  is 
newly  erected,  in  that  case  there  cannot  be  taken  arbitrary 
and  excessive  dntii's  oi-  cj-anage,  wharfage,  pesage,  &c. ;  neither 
can  they  be  enhanced  to  an  imniodcrale  rate,  but  the  duties 
must  be  reasonable  and  moderate,  though  settled  by  the  king's 
license  orehartec.  \'\\y  now  the  wharf  and  crane  and  otluT  con- 
veniencf's  are  arrectcl  witli  ;i  pultlie  interest,  and  they  cease 
to  l»e  juris  privdii  onl_\';  as  it"  ;i  man  sel  onl  a  sli'eet  in  new 
l)iiilding  on  his  own  land,  it  is  now  no  longer  bai-e  pi'ivate  in- 
terest, bnt  it  is  affected  with  a  pnblic  interest."  The  illustra- 
tion last  i/iven  is  not  ;i  liapp.x'  one.  The  setting  out  of  a  sti'eet 
is  the  r;iinili;ir  c;isc  of  (led ica  1  ion  which  i^i-;ints  to  the  pnblie. 
an  i-aseinent  of  i-itdit  of  way.  No  such  (h'dic;ition  can  he  ini- 
pntcd   to  the   hnihicr  i,\'  u   wliarl".      lie  certainly   invites   |)Mblic 

•  '•!    f    s;     I  111,    IS77. 

:J80 


i;  373  SCOPE  OF  DOCTRINE. 


381 


patroiicige  and  therefore  public  interest;  hut  this  is  lar  from 
saying-  that  he  grants  to  the  public  an  interest  in  lln-  s.-nsc 
of  a  right.  By  making  property  vahiable  to  the  puljlie,  tli.- 
owner  is  guided  by  considerations  of  self-interest,  and  he  ex- 
pects to  derive  from  the  public  patronage  a  profit  commensu- 
rate to  the  public  use.  There  is  no  purpose,  actual  oi-  implii-d, 
to  part  with  his  proprietary  control  in  the  least  degree,  such 
as  is  undoubtedly  involved  in  the  dedication  of  a  public  high- 
way .2  The  supposed  grant  to  the  public  is  therefore  a  pur(; 
fiction  of  law,  which,  far  from  aiding,  merely  confuses  the 
understanding  of  the  problem.  In  making  his  property  val- 
uable to  the  public  and  offering  it  to  the  service  of  the  public, 
the  owner  does  merely  what  every  business  man  does  who  in- 
vites indiscriminate  public  patronage. 

{5  373.  Kinds  of  business  and  forms  of  control.  — If  a  greater 
than  the  ordinary  control  is  claimed,  it  should  be  justified  by 
the  peculiar  conditions  of  the  business  affected. 

Omitting  those  kinds  of  business  which  are  subjected  to  ;i 
special  control  in  the  interest  of  peace,  safety,  health  and 
morals,  and  which  involve  only  the  police  power  in  the  nar- 
rower sense  of  the  term,  the  folloAving  have  been  classed  from 
time  to  time  as  in  a  special  sense  public  occupations  or  classes 
of  business:  at  common  law,  the  business  of  the  carrier,  inn- 
keeper, ferryman,  wharfinger,  miller;  the  character  is  fre- 
quently indicated  by  the  term  public  or  common  carrier,  etc. ; 
by  modern  statutes,  and  in  addition  to  the  common  law,  thi- 
business  of  railroads^  and  the  telegraph  and  telephone;  also 
the  management  of  turnpikes  and  canals ;  storage  of  grain  and 
tobacco,  and  the  business  of  stockyards ;  the  supply  of  water, 
gas,  light,  heat,  and  power,  through  pipes  and  wires;  and 
banking  and  insurance;  under  recent  judicial  decisions,  al.so 
the  gathering  and  distribution  of  news  and  market  (luotations.-* 

-See   remarks    of   Fry,    L.    J.,    in  and    arc    sul)jo('t     fi>    Kovoriinicntal 

Austerberry    v.    Corp'n    of   Oldham,  control    regarding   charges,    discrim- 

29  Ch.  D.  750,  on  p.  784.  inatiou,     etc.       In     Anstria     oontro- 

3  The  doctrine  that  a  railroad  is  versies  as  to  interpretation  of  rail- 
affected  with  a  public  use  is  laid  road  charters  are  assigned  to  the 
down  with  especial  clearness  in  01-  ailiiiinistrative  courts,  the  regular 
cott  V.  Supervisors,  1(5  Wall  (iZS.  civil  jurisdiction  being  excluded. 
In  foreign  countries  railro:ids  are  (Roschor  Nationalockoiuiniie  III. 
also    regarded    as    semi-public    j)r()p.  -JOO.) 

erty     if     they     are     not     altogether  '  In      (;crn\aiiy      niiiiing      is     also 

owned   and   managed    by   the   state,  treated  as  a  business  affected  with 


382 


BUSINESS  AFFECTED  WITH    PUBLIC  INTEREST.       ;<  374 


While  it  may  be  said  that  the  various  classes  of  business 
mentioned  have  to  do  with  either  transportation,  or  finance, 
or  the  necessaries  of  life,  or  the  staple  products  of  the  com- 
munity, it  does  not  appear  that  they  have  one  common  char- 
acteristic which  could  explain  the  special  public  interest. 

Turning  to  the  special  control  exercised  over  them,  we  lind 
that  it  assumes  one  or  more  of  the  following  forms:  the  regu- 
lation of  charges ;  the  requirement  of  equal  service ;  require- 
ments in  the  interest  of  public  convenience ;  and  requirements 
and  restraints  in  the  interest  of  financial  security. 

It  is  then  necessary  to  inquire,  to  what  classes  of  business 
each  of  these  requirements  applies,  and  how  it  is  justified  by 
the  nature  of  th»^  liusiness  to  whicli  it  aj^plies. 

EEGULATION  OF  CHARGES.    §§  374-385.5 

;i  374.  English  legislation.  — The  English  Statutes  of  the 
Kiiilm  show  only  I'ew  parliamentary  enactments  regarding 
charges  or  prices.  Of  the  time  of  Edward  II  there  is  an  assise 
of  bread  and  ale,  and  an  act  fixing  toll  at  mills,  and  the  prices 
of  victuals  form  the  subject  of  a  statute  of  Henry  VIII.''  The 
legislation  regarding  the  rate  of  interest  on  money  has  already 
b('(Mi  referred  to;  closely  allied  to  it  is  the  legislation  as  to 
profits  on  exchange  of  money,  of  which  an  exam])le  is  found  in 
25  Ed.  Ill  st.  5,  c.  12.  Reference  has  also  been  matle  to  the 
Statutes  of  Laborers  ])roviding  for  the  fixing  of  maxinuini 
rates  of  wages.  Of  the  timi^  of  Ihc  Tudors  we  lind  statutes 
fixing  pri<i-s  or  r.iti-s  for-  lout;  hows,"  fares  of  Thames  Water- 


.■i  jnil)lic  interest.  Xolice  iiuist  bo 
jjivon  of  the  bejijimiing  ami  the  sns- 
penHJcn  of  (tpenitionR;  if  (Ici-incd 
iieceHsary  in  the  piihlif  interest,  ii|)- 
erations  must  be  CDniliictcvl,  on  jiain 
of  forfeiture.  On  the  other  h:inii, 
lan<l  may  1"'  i'<in<ii'Miiii'il  in  (MiIit  Io 
iillinv  the  (ipeninjj  of  mines, 
((ieor^  Meyer,  Verwalliin^jsreciit, 
§  lis,  PniHsian  law  of  .Inne  li4, 
18(55.)  This  [trivileye  is  also  recop- 
nised  in  I'ranee  ( DiiiTorvj  nmif 
Administratrif,   S    710). 

•In  ruHP  of  rejriilatinn  liy  mii- 
nici|(al  authority  the  (juestion  is 
not  only  whether  the  pnwcr  ejin  Ito 
const  it  lit  iiitiallv  ex4'rcisei|,  but 


wlu'liuT  tlie  stale  has  deh'gated  it 
to  the  nlunieip.^lity.  This  latter 
aspect  will  nut  be  here  diseussed. 
Sf>e  St.  Tiouis  V.  Jiell  Telephone  Co., 
<i()  Mo.  ()-3,  L'  L.  R.  A.  278;  Re 
I'ryor,  H.^j  Kan.  7L'4,  29  L.  R.  .\. 
398;  Hushvillo  v.  Hushville  Natural 
r.as  Co.,  132  Ind.  r>75,  1.'')  L.  R.  A. 
321;  Chicajro  TTnioii  Traction  Co.  \. 
ChieaKo,  100  Til.  484  and  579,  fi5  N. 
E    451   and  470. 

'••  2r.  Henry  VIII.  .ap.  2.  .\s  to 
the  dilllcnllies  of  a  just  assise  of 
bread  see  lioHeher  Nationaloekono- 
inie    III,   798,  800. 

T  3  HcTirv  VII,   13. 


§374 


REGULATrOX  OF  t 'I1AI;(;|> 


:383 


men,**  books,'-^  and  beer  barrels.'"  The  price  of  coal  m  Lon- 
don is  fixed  by  16  and  17  Car.  U  c.  2;  and  by  li  W  mul  .M. 
c.  12,  §  24,  the  justices  of  Ihc  peace  are  authorised  to  assess 
the  prices  of  land  carriage  for  all  goods.  These  statutes  proli- 
ably  do  not  represent  the  whole  of  authoritative  regulation  <>\' 
charges  in  England,  which  should  include  rates  made  by  local 
authorities,  under  charter  authority  or  prescriptive  right.  If 
we  ask  on  what  principle  the  power  to  regulate  was  claimed, 
different  considerations  will  be  found  to  ai)ply  to  diffci-cnt 
subjects:  the  price  of  bread  has  been  from  an  early  time  the 
object  of  governmental  solicitude  in  all  countries;  maximum 
wages  were  fixed  as  a  means  of  restraining  the  laboring  cla.sses; 
the  regulation  of  the  rate  of  interest  was  regarded  as  a  license 
rather  than  as  a  restriction.  But  generally  the  doctrine  of 
the  later  Middle  Ages,  enunciated  especially  in  th<^  writings  of 
the  canonical  jurists,  was  that  every  commodity  had  its  just 
and  true  price,  and  that  determination  by  public  authority 
was  not  only  a  legitimate,  but  in  many  cases  the  best  method 
of  getting  at  this  price. ^^  The  doctrine  has  been  abandoned 
in  England,  and  the  old  statutes  are  no  longer  in  force;  hut  the 


8  6  Henry  VIII,  cap.  7 ;  2  and  3 
P.  &  M.  cap.  16. 

9  25  Henry  VIII,  cap.  15. 

10  35   H.   VIII,  c.   8. 

11  Cunnhigliam,  Growth  of  Eng- 
lish Commerce  II,  232,  and  espe- 
cially Endemann,  Studien  zur  Eo- 
manistisch  -  Kauonistischc'n  Wirt- 
sehaftslehre  II,  38. 


order  to  make  them  into  bread  and 
ale.  Not  to  do  this  would  have 
been  to  the  mind  of  the  thirteenth 
century,  and  for  many  a  century 
afterwards,  to  surrender  the  price 
of  food  to  a  combination  of  bakers 
and  brewers,  or  to  allow  a  rapacious 
dealer  to  starve  the  public.  They 
thought  that  whenever  the  value  or 


Rogers,  Six  Centuries  of  Work  part  of  the  value  of  a  nc<'css:iry 
and  Wages,  p.  140:  "No  police  commodity  was  wholly  determinable 
of  the  middle  ages  would  allow  by  human  agencies,  it  was  possible 
a  producer  of  the  necessaries  of  to  appraise  those  agencies,  and 
life  to  fix  his  charges  by  the  that  it  was  just  and  necessary  to 
needs  of  the  individual,  or  in  eco-  do  so.  That  we  have  tacitly  relin- 
nomical  language,  to  allow  supplies  quished  the  practice  of  our  fore- 
to  be  absolutely  determined  by  fathers  is,  T  repeat,  the  result  of 
demand.  The  law  did  not  fix  the  the  experience  that  competition  is 
price  of  the  raw  material,  wheat  or  suflicicnt  for  the  protection  of  the 
barley.  It  allowed  this  to  be  de- 
termined by  scarcity  or  plenty;  in- 
terpreted, not  by  the  individual 's 
needs,  but  ])y  the  range  of  the 
whole  market.  But  it  fixed  the 
value  of  the  labour  which  must  be 
expended    on    whcnt    and    barley    in 


consumer.  But  I  am  disposed  to 
believe  that,  if  a  contrary  experi- 
ence were  to  become  sensible,  wt' 
sliould  discredit  our  jiresent  prac- 
tice and  revive,  it  may  be,  the  past, 
at  least  in  some  directions." 


384  BUSINESS  AFFECTED   WITH    ITl'.LIC  INTEREST.       §375 

earlier  practice  of  legislation  has  not  perhaps  been  without 
influence  upon  the  doctrines  of  American  courts. 

§  375.  American  legislation  regarding  prices  and  charges.— 
Legislation  in  the  colonies  seems  to  have  confined  itself  to 
the  following  of  English  precedents:  the  Revised  Laws  of 
Massachusetts  of  1649  show  regulations  of  prices  or  rates  in 
the  following  matters:  interest  on  money;  wages;  bread;  fer- 
riage; mill  tolls;  and  wharfage.  ^Massachusetts  also  provided 
for  punishing  those  taking  excessive  wages  or  unreasonable 
prices  for  merchandise,  and  in  1777  enacted  for  the  City  of 
Boston  an  elaborate  tariff  of  charges  for  labor  and  merchan- 
dise, which,  however,  was  repealed  in  the  same  year.^^  '['[^^ 
earliest  legislation  of  the  Colony  of  New  York  in  this  matter 
relates  to  wharfage  rates.^^  A  statute  of  the  State  of  New 
York  of  1786  provided  for  the  furnishing  of  books  by  authors 
at  reasonable  prices.^  ^ 

The  regulation  of  wages  has  been  abandoned  in  all  states, 
and  is  forbidden  by  the  constitution  of  Louisiana;^-''  the  ma- 
jority of  states  regulate  the  rate  of  interest  on  money ;  many 
states  provide  for  authoritative  determination  of  mill  tolls, 
ferry  and  wharfage  rates,  and  pilot  fees.  Turnpike  corpora- 
tions and  canal  companies  were  first  formed  by  special  acts, 
which  often  fixed  the  tolls;"'  Avhere  turnpikes  are  now  estab- 
lished under  general  acts,  local  authorities  are  often  given 
power  to  regulate  tolls,  so  in  Illinois.'"  The  early  railroad 
charters  likewise  regularly  contained  provisions  regarding 
rates;  and  in  the  first  general  railroati  ae-t,  that  of  New  York 
of  1848,  the  legislature  reserved  the  right  to  reduce  rates,  so 
that  the  annual  profits  should  not  fall  below  ten  per  cent.  A 
nunilx-r,  although  not  a  majority,  of  states,  now  undertake 
or  give  power  1(»  railroad  commissions,  I0  liniil  or  reeuhile  rail- 
road rates,  oftener  \v\\\\  reL:;ifd  In  passenger  tliati  tVeiLjlit 
rates.'^  In  1871,  niinois  added  t(»  ihc  list  of  state  i-cLiulated 
f'harges  tlie  wareliousing  of  gi-ain,  and  this  legislati(tn  has 
heen    roljowed    in   ;i    innnlter  i)\'  the    \Ves1(>i-n    stales:    and    some 

izDnno'H  Ahriilgprnoiit   Vil,  p.  .''.<».  i' I{c>v.  Sl.il..  Tollronds,  §  0. 

>a  Act  of  .June  L"J,  17:5).  o*StimHon     Am.     Sl.it.     I/iw     11, 

>•  nrornlfjif  L.'iwH.  j..  J75.  i:{.')-441,       4ir>-\r)\l;       iiisd       lutcrst. 

''•8    <I>.  (,'0111.  ('(iiiim'n   V.  ("iii('inii:iti,  &c.,  R. 

'"  rVrrin*)    v.    fhoHapcako    &    Del.  Co.,  1G7  U.  S.   t7!>,  •J*».')-4!»!>. 
f'nnnl  Co.,  !»  H..\v.  172. 


§  376  EEGULATIOX  OF  CHARGES.  385 

of  the  tobacco  producing  states  regulate  the  charges  for  ware- 
housing tobacco,  so  North  Carolina  by  act  of  1895.  The  legis- 
lation of  the  last  decade  has  added  to  the  list  of  regulated 
charges:  telephone  rates/''  insurance  rates,^"  the  price  of 
gas,2i  and  the  price  of  water,^^  ^jj^j  ^j^q  charges  made  by  stock 
yard  companies. ^^ 

Mention  should  also  be  made  of  the  power  contained  in 
city  charters  to  regulate  the  compensation  of  hackmen,^^  dray- 
men, omnibus  drivers,  porters,  expressmen,  and  others  pursu- 
ing a  like  occupation. ^•'' 

§  376.  Attitude  of  the  courts.— Local  regulations  have 
not,  in  the  past,  been  subjected  to  serious  judicial  scrutiny  as 
to  the  question  of  their  constitutionality.^^  The  iixing  of 
maximum  rates  of  interest  has  always  been  upheld  without 
questioning,  the  long  established  historical  usage  being  re- 
garded as  a  sufficient  justification.  The  regulation  of  grist 
mill  tolls  has  been  sustained  in  Maine  upon  the  ground,  that 
from  the  early  colonial  times  mills  have  always  been  aided 
by  legislation  in  the  public  interest.-'  The  constitutionality 
of  the  legislation  regulating  railroad  charges  was  upheld,  upon 
the  fullest  consideration,  in  the  Granger  Cases,^^  which  at  the 
same  time  sustained  the  regulation  of  warehouse  rates.  The 
principal  opinion  was  w^ritten  in  the  warehouse  case  (ilunn  v. 
Illinois),  and  the  court  relied  most  strongly  upon  the  fact  that 
the  business  of  grain  elevators  in  the  city  of  Chicago,  a  "gate- 
way of  commerce, ' '  constituted  a  virtual  monopoly.  The  same 
justification  applies  still  more  strongly  to  railroads;  for  the 
business  of  a  railroad,  which  calls  for  extraordinary  legal  priv- 
ileges in  the  exercise  of  eminent  domain,  has  some  of  the  fea- 

"  Indiana,  Maryland,  1896.  -^  Illinois  City  Law,   V,   §   1,   No. 

20  New  Hampshire,  1899.  42. 

21  New  York  General  Laws,  ch.  -'s  Sustained  in  Commonwealth  v. 
40    §  70.  Duane,   98   Mass.   1;    Commonwealth 

22  Illinois  Act  of  1891.  v.   Gage,    114   INIass.   328;    also   Chi- 

23  Nebraska  and  Kansas,  1897.  cago  Union  Traction  Company  v. 
The  act  of  Kansas  was  declared  un-  Chicago,  199  111.  484  and  579,  65  N. 
constitutional  on  account  of  its  un-  E.  451  and  470,  case  of  a  stret-t 
reasonableness    and    inequality;    see  railroad  company. 

Cotting  V.  Kansas  City  Stock  Yards  27  State  v.   Edwards,   86   .Mo.   102, 

Co.,  183  U.  S.  79.  25  L.  R.  A.  504. 

2*  As    to    regulation    of    hackney         ^s  94    U.    S.    11. ^,    155.    ir,4.    179, 
coaches     see     Anderson,     Origin     of     180,  181,   183. 
Commerce,    1635,    1637,    1654;    Ry- 
raer's  Foedera  XIX  721,  XX  159. 
25 


386  BUSINESS  AFFECTED  WITH   PUBLIC  INTEREST.      §  376 

tures  of  a  de  jure,  as  well  as  of  a  de  facto  monopoly.  Not- 
withstanding: some  more  general  expressions,  the  Granger 
Cases  might  have  been  construed  as  making  the  power  to  regu- 
late charges  dependent  upon  the  monopolistic  character  of  a 
business;  and  the  same  view  may  be  taken  of  the  decisions 
in  Budd  v.  New  York,-^  sustaining  the  New  York  statute  fix- 
ing elevator  charges  in  the  cities  of  New  York  and  Buffalo, 
in  which  the  court  likewise  dwelled  upon  the  virtual  monopoly 
enjoyed  by  the  business,  and  in  Spring  Valley  Water  Works 
V.  Schottler,^"  where  it  is  recognised  that  the  state  may  regu- 
late the  price  of  water  if  the  supply  is  monopolised.  But  the 
requirement  of  a  monopoly,  legal  or  actual,  as  a  justification 
for  the  legislative  regulation  of  charges,  was  abandoned  in 
Brass  v.  North  Dakota,  where  the  regulation  was  upheld,  al- 
though the  grain  elevator  business  in  that  state  did  not  pre- 
sent any  feature  of  monopoly.^!  "When  it  is  once  admitted 
*  *  *  that  it  is  competent  for  the  legislative  power  to  con- 
Irol  the  l)usiness  of  elevating  and  storing  grain,  whether  car- 
ried on  by  individuals  or  associations,  in  cities  of  one  size  and 
in  some  circumstances,  it  follows  that  such  power  may  be  le- 
gally exerted  over  the  same  business  Avhen  carried  on  in 
smaller  cities  and  in  other  circumstances."  The  expressions 
in  the  earlier  cases  concerning  the  monopolistic  character  of 
the  business  were  now  declared  to  have  gone  only  to  the  ques- 
tion of  the  propriety,  ;iii(l  not  ol"  the  power  of  such  legislation. 
The  decision  was  rendered  liy  a  l)a fc  majoi-ily  of  the  couft. 
and  the  dissenting  opinion  again  emphasised  the  view  that 
only  a  practical  monopoly  justilies  the  regulation  of  charges. 
The  regulation  of  tobacco  Avai'ehouse  charges  would  be  sim- 
ilar in  i)riiiciple  to  the  i-egulalion  ol"  gi-ain  elevator  charges. 
The  regulation  oi"  telepJKMie  i-a1es  has  bei-n  uj)held  upon  the 
same  grounds  as  lliat  dI'  I'ailioail  i-ates.''^  The  regulation  of 
insurance  rat«'s  has  not  yt'\   heen   passecl  upon  jnilicially.'*-'' 

ji  377.     Justification  by  legal  or  virtu.-^l  monopoly.— When 

'-fo  143    U.  H.   fjlT.  "lulled,    :iii(l    in    Homo    caspfl    (bakorH, 

■■"'llO  U.  S.  347.  imikoppcrH,    «&('.),    a    requirciuont    to 

ai  1.'j3  U.  S,   391.  •  |)n8t      ratoH    lias     boon      Hnhsfitutcd. 

■■*2  Hockett  V.  Htatf,   lO.'i   Iixl.   'J.'iO;  Charges  uf   ixntiTs,    k<(|Mrs   of   |)iil)- 

<'fiitral  Union  Td.  Cn.   v.   Hradlinry,  lie  convcyaTicrH,  cliiiniicy  swccpH  aii<l 

1()(»   In<l.   1.  ||nl^;^,'iHtH   may   .still    lie   (ixcil    liy   uu- 

na  In    fliTinany    tli<'    regulation    of  tliority.     Trade  Code  §   72-7H. 
eliarjcH    liJiH    generally    been    aban- 


^  ;{77  VIRTUAL   MONOPOLY.  3^7 

the  constitutional  power  to  rcj^ulate  prices  and  diart^es  is 
examined  on  principle,  little  difficulty  will  be  found  in  sustain- 
ing it  with  reference  to  all  classes  of  business  claiming  special 
privileges  at  the  hands  of  the  community.  In  nearly  all  cases 
the  privilege  is  of  such  a  character  that  it  cannot  be  indiscrim- 
inately given,  and  therefore  the  business  constitutes  a  di- 
jure  monopoly;  and  in  all  cases  the  enjoyment  of  special  priv- 
ileges removes  the  business  from  a  condition  of  equality  with 
purely  private  enterprises.  The  enjoyment  of  special  rights 
and  powers  demands  and  justifies  the  exercise  of  special  con- 
trol. This  consideration  applies  to  all  enterprises,  in  behalf  of 
which  the  power  of  eminent  domain  is  exercised,  or  which  use 
public  highways  in  a  special  and  exclusive  manner:  raih'oads. 
canals,  bridges,  turnpikes,  telegraph,  telephone,  water,  gas, 
and  electric  conduits.  The  right  to  keep  a  ferry  being  treated 
as  a  franchise,  falls  under  the  same  principle.  A  mill  which 
uses  water  power,  is  very  commonly  grantcnl  special  privileges 
with  regard  to  overflow.^^  The  keepers  of  cabs  and  hacks  en- 
joy special  rights,  if  they  have  permanent  stands  on  city 
streets. 

It  has  been  shown  that  the  opinions  delivered  in  the  earlier 
grain  elevator  cases  strongly  relied  upon  the  monopolistic 
character  of  the  business.  The  monopoly  in  these  cases  was 
not  a  legal  one,  but  it  was  held  to  exist  virtually'  and  de  facto. 
The  argument  of  special  privilege  does  not  avail  in  such  a  case 
to  justify  the  regulation  of  charges;  but  since  the  common 
regulating  factor,  competition,  is  absent,  a  condition  is  pre- 
sented which  calls  for  the  exercise  of  the  police  power  for 
the  prevention  of  oppression. •^'''  The  police  power  is  exercised 
for  the  prevention  of  monopolies,  where  they  rest  upon  pre- 
ventable machinations;   it  follows  that  Avhere  a   monopoly   is 


«4  See  §§  41U-413,  infra.  they  wore  not  able  to  live  upon  the 

35  An    instance    of    regulation    of  gain    that    should    rest    unto    them, 

prices    in    case    of    a    monopoly    is  giving  so   excessively   for  the  same, 

found  in  Dasent,  Acts  of  the  Privy  it  was  ordained   that  he  should   not 

Council,  1545,  p.  192;   on  complaint  demaud    above    £7    sh.    10    for    the 

made    by    the    whole    company    of  band.— In  the  leading  English  case. 

bowyers  that  one  Peter  van  Helden,  Allnut    v.    Inglis,    ll'    East    5'J7.    the 

of     the     Steelyard,     having     in     his  power      to      prevent      unreasonable 

hands   the   whole   trade   of   bringing  charges  was  based  upon  the  special 

in  of  bowstaves  into  the  realm,   .le-  privileges     enjoyed      by     the     dock 

manded     such     excessive     prices     as  company. 


3S8  BUSINESS  AFFECTED  WITH    PUBLIC  INTEREST.       §  21S 

inevitable  by  reason  of  natural  conditions,  the  power  must 
exist  to  minimise  its  detrimental  effects.  Wherever  physical 
conditions  are  naturally  limited  for  carrying  on  some  business, 
a  case  arises  for  special  control ;  and  this  will  often  l)e  true 
of  mill  and  wharf  rights ;  but  it  is  also  possible  that  economic 
conditions  will  tend  to  make  a  business  a  monopoly ;  so  the 
business  of  an  exchange  cannot  be  advantageously  carried  on 
except  by  a  co-operation  and  concentration  of  all  interests. 
The  regulation  of  charges  would  seem  as  justifiable  here  as  in 
the  grain  elevator  cases. 

§  378.  Constitutionality  in  other  cases.— Where  there  is 
neither  legal  nor  actual  monopoly,  the  (juestion  of  the  power 
to  regulate  charges  presents  great  difficulties.  It  seems  im- 
possible to  deny  the  constitutional  power  in  the  face  of  such 
a  decision  as  Brass  v.  North  Dakota^'^  and  of  the  well-estab- 
lished limitation  of  rates  of  interest,  and  there  seems,  more- 
over, to  be  no  case  in  which  a  reasonable  regulation  of  charges 
has  been  declared  unconstitutional  on  the  ground  that  the 
legislature  does  not  possess  such  power.  On  the  other  hand, 
it  is  true  that  popular,  legislative,  and  judicial  sentiment  alike 
are  opposed  to  the  recognition  of  an  indiscriminate  power 
to  regulate  charges.  The  Court  of  Appeals  of  New  York,  in 
the  Budd  case,  said  that  no  general  power  resided  in  the  legis- 
lature to  regulate  private  business,  prescribe  the  conditions 
iiiidt  r  which  it  should  be  conducted,  fix  the  price  of  commod- 
ities or  services,  or  interfere  with  the  freedom  of  contract,  and 
that  the  merchant,  manufacturer,  artisan,  and  laborei-,  uiidfi- 
<Mii-  systciM  of  government,  are  left  to  pursue  their  way,  uii- 
1  laiiiimjcd  liy  biifdensome  and  restrictive  regulations,  which, 
however  coiiiiiioii  in  rude  and  in-cgular  times,  are  inconsistent 
witli  constitutional  liberty.-'"  Siniilai'  expressions  were  used 
by  the  Supr<Mne  f'oiirt  oj"  Mjiint',  while  uj)holding  the  legisla- 
tive regulation  of  mill  lolls. 3«  A  general  power  to  regulate 
charges  would  also  incluile  the  power  to  (ix  iiiiiiiiiiuiii  oi'  maxi- 
iiiiiiii  I'ates  of  wages,  which  would  he  <miii1  I'ln-y  to  a  strong  eiir- 
reiit   of  judicial  de(!isions  in  the   matter  ol'  lahoi-  legislation.-'" 

•■•"  l.">:»    I.'.   S.   .'.'.M.  of     jirofi'HsioiiMl     iiHMi, "     ;is     thoiijrli 

•■'7  I'i'o[ilo   V.   Bmlil,    117    \.    V.    1. —  tlicv  Wf-ri-  ii  iriiiimnn  siwcics  of  Ic^is- 

Justico     WuHliiiifjfoii,     ill     Oyilcii     v.  lalioii. 

SiiuikI.th.   I'J  Wlu-at.  L'l.S,  p.  25\),  ic  ''^  State   v.    lOdwnnls,   HO    Mo.    lOL*. 

ffPH   to   "lawH    wliicli    limit    tli<'    fns  ■■>  Ur    I'rfHton.   (V.\   Oli.   St.  4'J.S,   .^!) 


§  379  KEASOXABLENESS  Ul"   i;A  Ti:.  389 

A  possible  solution  of  the  difficulty   niay   bi-   I'ouiul    in   ilw 
application  of  the  principle  of  ecjuality.     Concedinf^  that  it  is 
within  the  general  scope  of  the  jjolicc  i)Ower  to  prevent  un- 
reasonable charges  as  constituting  a  form  of  economic  oppres- 
sion and,  as  a  means  of  prevention,  to  fix  rates,  yet  it  is  clear 
that  a  systematic  regulation  of  charges  of  all  commodities  an<l 
services  is  not  within  the  range  of  practical  legislative  policy. 
All  such  legislation  will  necessarily  apply  to  partii-uhir  classes 
of  business.     Under  the   principle  of   ccpiality  the   classes  so 
singled  out  should  have  some  special  relation  to  the  possibilit\' 
of  oppression.      The   justification   for   regulating    charges    in 
some  particular  business  would  usually  be  that  it  constitutes 
a  de  jure  or  a  de  facto  monopoly  or  enjoys  special  ])rivileges; 
but  it  may  also  be  that  the  commodity  selected  is  a  necessary  of 
life,  or  that  it  is  essential  to  the  industrial  welfare  of  the  com- 
munity, or  that  it  has  been  immemorially  the  subject  of  regula- 
tion.    Upon  this  theory  it  is  possible  to  account  for  existing 
legislation   without   conceding   legislative   power   with   regard 
to  any  and  all  commodities  M'hich  it  may  choose  to  select,  and 
on  the  other  hand  to  alloAv  for  new  applications  of  this  power, 
Avhile  subjecting  them  to   an   efificient  judicial   conti'ol   which 
will  undoubtedly  be  claimed  and  exercised.     There  will  thus 
be  an  adequate  safeguard  against  arbitrary  class  legislation 
in  the  matter  of  regulation  of  charges.     All  legislation  in  this 
matter  will,  moreover,  be  subject  to  the  principle  of  reason- 
ableness of  the  rate  fixed,— a  principle  which  has  become  .'stnh- 
lished  in  a  series  of  important  decisions. 

§  379.  Earlier  doctrine  that  reasonableness  a  legislative 
question.— In  the  case  of  j\lunn  v.  Illinois,^"  in  whieh  the 
power  to  regulate  charges  was  first  elaborately  discussed  and 
recognised,  it  was  urged  that  the  owner  is  entitled  to  a 
reasonable  compensation,  and  that  what  is  reasonable  is  a 
judicial  and  not  a  legislative  question.  This  was  denied  l)y 
the  Supreme  Court.  The  court  said  that  the  practice  had 
been  otherwise;  that  in  private  contracts,  what  is  reasonable 
must  be  ascertained  judicially,  because  the  legislature  has  no 
control  over  such  a  contract,  and  so  in  matters  of  jiublie 
interest,  where  no  statutory  regulation  exists,  the  courts  nuist 

N.  E.  101:     "Counsel  for  the  state     the     legislature     to     determino     tlio 
expressly   disclaim  any  authority   in     price  to  be  paid  for  mining  coal." 

4"  94  V.  S.  113. 


39G  BUSINESS  AFFECTED  WITH   PUBLIC  li\TEKEST.       ^  380 

determine  what  is  reasonable;  that  to  fix  a  maximum  beyond 
which  a  charge  would  be  imreasonable  is  only  to  substitute 
statutory  for  common  law  regulation,  and  does  not  establish 
a  new  principle.  That  the  jwwer  may  be  abused,  the  court 
continued,  is  no  argument  against  its  existence;  for  protec- 
tion against  abuses  by  legislatures  the  people  must  resort  to 
the  polls,  not  to  the  courts.  Even  the  dissenting  opinion  of 
Justice  Field  assumes  that  if  it  be  admitted  that  the  legislature 
has  any  control  over  the  compensation,  the  extent  of  that  com- 
pensation becomes  a  mere  matter  of  legislative  discretion. 

The  principle  of  ^lunn  v.  Illinois,  laid  down  in  that  case  with 
reference  to  grain  elevators,  was  applied  to  railroad  charges 
in  a  number  of  other  cases  decided  at  the  same  time.-*^  No 
further  light  is  thrown  by  these  cases  upon  the  question  of 
reasonalileness. 

?  380.  Regulation  not  confiscation.'-  — The  proposition  that 
the  (,liscrt4it>n  ol'  the  legishiturc  in  tletermining  Avhat  shall  be 
a  maximum  reasonable  rate,  is  uncontrollable  by  the  courts, 
was  first  questioned  in  the  so-called  Railroad  Commission 
Cases^3  decided  in  1886.  It  was  noAv  said  that  the  power  of 
limitation  or  regulation  is  not  itself  without  limit;  that  the 
power  to  regulate  is  not  a  power  to  destroy,  and  limitation 
not  e(iuivali'nt  to  confiscation.  That  under  pretense  of  regu- 
lating fares  and  freights  the  state  cannot  require  a  railroad 
corporation  to  carry  persons  or  property  without  reward,  for 
tiiat  would  amount  to  tiiking  property  for  public  use  Avithout 
just  compensation,  oi-  Avithout  due  process  of  law.  The  court, 
however,  had  no  occasion  in  the  case  before  it  to  apply  the 
judicial  j)ow«'i-  llius  asserted,  for  no  tai'ilf  had  yet  been  estab- 
lished, ;inil  llic  st.ilute  exj)ressly  provided  that  in  ;ill  trials 
of  cases  lirniiLilii  for  ;iii\-  violation  ol'  ;iny  Ini'ilV  of  charges  as 
fixed  by  the  eoiiimission,  it  iniLiliI  he  shown  in  defence  that 
such  tariff  was  unjust.  In  l)<iw  w  lieidehnan,"  ai-ising  undi'i- 
a  law  ol"  Arkansas,  lixing  tiic  rate  of  jiassenger  fai'es,  it  was 
held   lli.-il    without    any   ])roof  ol"  the  original   cost  of  the  road 

<•  Chir-iiKd,     l;.     \-     (}.     U.     Co.     v.  WiHconsiii,    IM     V.    S.    ISl;    soi^    iilsi) 

Iowa,  «4  U.  H,  ^^)^)■,   I'eik  v.  ChicuRo  KuhkIch  v.    Fllinois,  lOS  U.  S.  .126. 
&   N.   W.   R.  Co..  ;•(    r.   S.    Kit;    f'lii-  ■•-•  See,  also,  §  .I  .'■.0-5;- I. 

fftRo,   M.  &  St.    I'.    \(.  Co.   V.   Afklcy.  ••iStoiK"  v.  FarmcrH   L.  &  Tr.  Co., 

04    IT.   H.    170;    Winon;.   &   St.    I',    h'.  I  IC   C.  S.   :?07. 
f)t).  V.  Blfiko,  <t4   IT.  S.    ISO;    Stone   v.  "  !'_'.''■    V.   S.   ('.SO. 


§  381  KATES  FIXED  BY  COMMISSION.  ;jy]L 

the  court  had  no  means,  if  nnder  any  circumstances  it  would 
have  the  power,  of  determining'  that  the  k'gislalive  rate  was 
unreasonable.  In  other  words,  leyishitive  rates  are  presump- 
tively reasonable,  and  the  burden  of  showing  that  they  are 
not,  lies  on  the  railroad  company. 

§  381.  Rates  fixed  by  commission  and  due  process.— The 
next  following  cases  show  a  dift'erence  of  judicial  attitude 
toward  rates  according  as  they  are  fixed  by  the  legislature  di- 
rectly or  by  a  commission.  That  the  legislative  power  may 
be  exercised  through  commissions  has  never  been  questioned 
by  the  United  States  Supreme  Court,  and  was  tacitly  ad- 
mitted in  the  Railroad  Commission  Cases;  and  the  Supreme 
Court  of  Illinois  has  held  expressly  that  the  power  to  regulate 
must  include  reasonable  means,  and  that  the  fixing  of  rates  ac- 
cording to  varjang  circumstances  requires  the  employment  of 
administrative  agencies."*^ 

The  delegation  of  the  power  to  fix  rates  to  a  commission 
engaged  the  attention  of  the  Supreme  Court  in  the  case  of 
Chicago,  Milwaukee  &  St.  Paul  R.  R.  Co.  v.  Minnesota,-"^  de- 
cided in  1890.  An  act  of  Minnesota  (the  act  is  printed  with 
the  report  of  the  case),  provided  that  if  the  State  Railroad 
Commission  should  find  that  railroad  tariffs  were  unecpuil 
or  unreasonable,  it  might  compel  changes  and  the  adoption 
of  such  rates  as  the  Commission  should  declare  to  be  equal  and 
reasonable.  To  which  end  the  Commission  should  inform  the 
carrier  in  wdiat  respect  the  charges  were  unequal  or  unreason- 
able, and  recommend  what  tariffs  should  be  substituted  there- 
for.'*'' If  the  carrier  for  ten  days  after  the  notice  should 
refuse  to  substitute  such  tariff  the  Commission  should  im- 
mediately publish  the  same,  and  thereafter  it  should  be  un- 
lawful for  the  carrier  to  charge  a  higher  or  lower  rate.-'*'  The 
Commission  was  directed  to  enforce  compliance  with  such 
tariff  through  mandamus  to  be  issued  by  the  Supreme  Court.-*" 

45  Chicago,    B.    &    Q.    R.    Co.    v.  the   past   reasonable   ami   just.      In- 

Jones,    149    111.    361.— Coiiirress    has  terstate    Coniincrco     Commission     v. 

not    bestowed    upou    the    Interstate  Alabama  x^fidlana  R.  R.  Co.,  168  U, 

Commerce  Commission  the  power  to  S.  144. 
prescribe  rates,   nor  even   to   obtain  •»<'134  U.  S.  418, 

from   the   courts   pt>romptory   orders         ■*''  Sec.  So,  of  Act. 
that  in  the  future  tlie  railroad  com-  -is  Sec.  8f. 

panies  should  follow  the  rates  whicli         ■"*  Sec.  8g. 
it   had   determined   to   have  been   in 


392  BUSINESS  ATFECTED   WITH    PUBLIC  INTEREST.       §  381 

It  was  further  provided  that  the  Commission  should  conduct 
its  proceedings  in  such  manner  as  would  best  conduce  to  the 
proper  dispatch  of  business  and  the  ends  of  justice.  That 
it  might  make  general  orders  for  the  conduct  of  proceedings 
"including  forms  of  notices  and  service  thereof  which  shall 
conform  as  nearly  as  may  be  to  those  in  use  in  the  courts  of 
this  state.  Any  party  may  appear  before  the  Commission 
and  be  heard  in  person  or  by  attorney."  Its  proceedings  were 
to  be  public  if  required,  and  any  member  was  authorised  to 
administer  oaths  and  affirmations.^"  The  Commission  was  also 
vested  with  power  to  require  attendance  of  witnesses  and  the 
production  of  books,  and  to  that  end  was  given  leave  to  in- 
voke the  aid  of  the  courts.'^ ^ 

In  this  case  it  was  sought  to  enforce  a  tariff  which  the 
Commission  had  established  after  complaint  made  as  to  cer- 
tain rates,  the  railroad  company  having  appeared  and  been 
heard  by  the  commission  before  the  making  of  the  tariff.  ]\Ian- 
damus  proceedings  were  instituted,  and  ihc  Company  applied 
for  a  reference  to  take  testimony  on  the  issue  raised  by  the 
allegations,  and  as  to  whether  the  rate  fixed  l)y  the  Commis- 
sion was  reasonable,  fair  and  just.  The  court  denied  the  ap- 
plication for  a  reference  and  rendered  judgment  that  a  per- 
emptory writ  of  mandamus  should  issue,  the  only  (juestion  in 
issue  being  the  violation  of  the  law,  and  not  \hc  reasonable- 
ness of  the  rates  which  was  conclusively  established  by  the 
linding  of  the  Conniiission. 

The  United  States  Supreme  Court  held  that  the  Act  did 
not  satisfy  the  principle  that  llie  reasonableness  of  rates  can 
be  established  conclusively  only  by  due  process  of  law,  since 
there  was  no  power  in  IIk'  eoui'ts  lo  stay  the  hands  of  tlie 
ConiJiiission  if  it  chose  to  establish  unecpuil  and  uiu-easonable 
rates;  that  under  the  construction  placed  by  the  state  court 
upon  tlie  j)owers  of  tli<'  Commission,  it  eo\il(|  not  he  regarded 
as  ei(»tlie(l  with  judicial  runetions  or  |)ossessing  the  machint'ry 
of  courts  of  justice;  that  the  Commission  might  declare  rates 
without  |)revious  lu'aring,  suninions  oi-  notice  to  the  coiii|);iny 
.,!■  without  oiipoftunity  on  its  p.'irt  to  |troduce  witnesses  or 
indeed  ;in\thiii<.'-  hiiving  the  srinlil.ince  of  due  process  ol"  hiw; 
that  altlioMgh  the  eoiripiiny  here  ;i  p|)e;irr(|,  thcfe  was  nothing 
to  show   wh;it    th«'  ••li;ir;icl  it  of   the   investigation    was  or  how 

r'OSec.  9f.  f-' See.   13b. 


§  382  RATES  FIXED  BY  LEGISLATURE.  393 

the  result  was  arrived  at.  The  provisions  of  section  9f  and 
13b  above  set  forth  were  considered  either  as  not  nianrhitory 
upon  the  Commission,  or  as  not  applicabk^  to  the  process  of 
finding  the  just  rates,  or  as  not  satisfying  what  the  Supreme 
Court  deems  essential  to  a  judicial  investigation,  and  upon 
this  theory  the  act  undertook  to  grant  a  power  to  concludi* 
a  constitutional  right  without  due  process  of  law,  and  thereby 
contravened  the  Constitution  of  the  United  States.  This  ea.sc, 
then,  establishes  the  principle,  that  the  legislature  in  regu- 
lating charges  cannot  leave  the  conclusive  determination  oi" 
the  question  of  reasonableness  to  administrative  authorities 
not  proceeding  under  the  same  safeguards  to  private  I'iglits 
as  courts  of  justice.  ^Moreover,  it  is  intimated  that  the  mere 
failure  to  provide  expressly  for  judicial  review  violates  the  re- 
quirement of  due  process  of  law. 

§  382.  Rates  fixed  by  legislature.— As  regards  rates  fixed 
by  the  legislature  directlj^  it  has  never  been  held  that  the 
statute  itself  must  provide  for  judicial  revision,  and  while 
provision  for  an  appeal  to  the  courts  is  not  infrequently  made 
where  the  power  to  fix  rates  is  delegated  to  local  legislative 
bodies,!  no  statute  determining  charges  directly  contains  a 
provision  to  that  effect.  When  the  case  of  Budd  v.  New  York^ 
came  before  the  Supreme  Court,  this  being  a  case  in  which 
charges  for  elevating  grain  had  been  fixed  directly  by  statute, 
it  was  contended  among  other  things,  relying  upon  the  Minne- 
sota case,  that  the  question  of  reasonableness  must  be  reserved 
for  judicial  investigation.  But  the  court  now  drew  a  dis- 
tinction between  rates  fixed  by  the  legislature  directly  and 
rates  which  were  left  to  an  administrative  commission,  and 
held  that  as  to  the  latter  due  process  must  be  secured  by  the 
statute,  while  as  to  the  former  that  is  not  necessary.-^  Th<' 
records  in  the  case  of  Budd  v.  New  York  not  showing  that 
the  charges  fixed  by  the  statute  were  unreasonable,  the  court 
could  not  inquire  into  the  question  of  reasonableness,  "even 

iSo    Illinois    Act    June    6,    1891,  trative   and    not   as   lopislative.      Tn 

with     regard    to     water     rates,     see  California  a  determination  by  a   lo- 

Hurd's  Eev,   Stat.   1899,   Cities  No.  cal  legislative  council  without   hear- 

257f,  ing  was  held   not  to  constitute  due 

2  143  U.  S.  517    1892.  process   of    law.     San    Diego    Water 

n  A  rate  made  by  a  local  govern-  Company  v.  San  Diego,  118  Cal.  556, 

ing  authority  for  a  particular  com-  38  L.  R.  A.  460. 
pany  should  be  regarded  as  adminis- 


394  BUSINESS  AFFECTED   WITH    PUBLIC  INTEREST.       §  3^3 

if  under  auy  circumstances  we  could  determine  that  the  maxi- 
mum rate  fixed  bj'  the  legislature  was  unreasonable."  It  ap- 
pears that  even  the  power  to  ([uestion  legislative  rate  is  here 
draAvn  in  doubt. 

>;  383.  Jurisdiction  of  federal  courts.— The  competency 
of  the  judicial  power  to  ^inquire  into  the  reasonableness  of 
rates  was  again  strongly  insisted  upon  in  Reagan  v.  Farmers 
Loan  &  Trust  Company.^  AVhile  the  case  arose  under  rates 
established  by  a  railroad  commission,  the  court  distinctly  says 
that  there  is  no  doubt  of  the  power  and  duty  of  courts  to 
inquire  whether  a  body  of  rates  prescribed  by  a  legislature 
or  a  commission  is  unjust  and  unreasonable,  and  sueh  as  to 
work  a  practical  destruction  of  rights  of  property,  and  if 
found  so  to  be,  to  restrain  its  operation.  In  this  case  a  Texas 
statute  had  provided  that  rates  shouhl  be  established  by  a 
commission,  but  only  upon  notice  to  the  railroad  company 
to  be  affected,  Avhich  should  l)e  heard  and  have  process  for 
attendance  of  witnesses;  the  rates  thus  established  to  be  con- 
clusive until  finally  found  otherwise  in  a  direct  action  l)rought 
for  that  piifposc  ill  a  coiji-i  nf  coiuiicti'iil  jui'isdiction  in 
Travis  Couiit\'.  Texas,  in  wliicli  tlif  hiirdcn  of  i)roof  should 
rest  upnii  iht'  plaint  ilV.  A  suit  in  (Miuity  was  hi'ouLiht  by 
the  plaintiff's,  citi/cns  of  New  ^'o^k,  in  tiic  Tnited  States  Cir- 
cuit Court,  a  court  holding  sessions  in  said  Travis  County, 
against  the  Texas  Kailroad  Commission  to  r(>strain  it  from 
I'nfoi'cing  the  rates  i-stablishi'd  by  it.  The  Cnitcd  Stati's 
Supreme  Coui'l  upheld  the  jurisdiction  oi'  Ihe  Circuit  Court 
for  tliat  purpose  upon  the  gi-ound  that  Avhenever  a  citizen  of  a 
state  can  go  into  the  state  courts  to  ilel'end  bis  propertx  rights 
against  the  i  I  lee  a  I  acts  of  state  (tt'licers.  a  eit  i/eii  of  a  not  her  state 
may  inxnkc  tbr  iiirisdiet  ion  ot"  the  federal  courts  \n  maintain 
a  lik'e  dereiicc,  and  that  no  leeislat  ion  of  a  state  as  to  tlie  mode 
of  |)ro('('cding  in  its  own  eiMirts.  can  abridge  or  modify  the 
powers  cxistiiiL'  in  the  fedei-al  courts  sittiuLr  as  courts  of 
e(piify. 

i5  384.     DilHculties  of  judicial  control.     It    is  clear  ttiat    ilie 
determination   of  a   just,   rati'  depends   upon   (dose   and   com|)li 
cated    cah'uhitions    in    ea(di    ease,    and    the    question    naturally 
sui/i/ests  its. 'If:  is  this  a   proper  I'uiKdion   fur  the  courts  to  per 

« ]r,4  V.  s.  .^r,L',  ih94. 


^  38-1  JUDICIAL  CONTKOL.  :{.j-j 

form?  One  dauj^er  is  adverted  to  iu  Chica{,'0  &c.  H.  Co.  v. 
Wellman,-"'  namely,  that  of  collusion  between  the  railroad  com- 
pany and  a  person  suing  for  a  penalty  on  account  of  a  eharg.- 
exceeding  the  legal  rate,  such  action  being  brought  in  tn-tU-v 
to  establish  the  unreasonableness  of  this  rate  Tb.-  <|u.'stion 
can  be  fairly  concluded  only  if  the  pul)lic  arc  pi'opcrly  repre- 
sented, and  the  United  States  Supreme  Coui-t  suggests  for 
this  purpose  a  ])i!l  in  ('((uity  against  the  railroad  citnimission 
or  other  board,  which  is  possible  only  if  the  fixing  or  adnjinis- 
tration  of  rates  is  entrusted  to  a  board.''  This  course  was 
adopted  in  Reagan  v.  Farmers'  Loan  &  Trust  Comjiany  witli 
regard  to  the  legislation  of  Texas." 

As  the  Supreme  Court  has  pointed  out,^  the  question  of  the 
reasonableness  of  rates  would  be  more  easily  determined  by  a 
commission  composed  of  i)ersons  whose  special  skill,  observa- 
tion and  experience  avouIcI  qualify  them  to  so  handle  great 
problems  of  transportation  as  to  do  justice  both  to  the  public 
and  to  those  whose  money  has  been  used  to  construct  and  main- 
tain highways  for  the  convenience  and  benefit  of  the  people. 
In  the  Reagan  case  the  court  had  said  that  the  formation  of 
a  tariff  of  charges  foi'  transportation  is  a  legislative  or  ad- 
ministrative rather  than  a  judicial  function,  and  that  it 
is  not  the  province  of  the  courts  to  enter  upon  the  merely 
administrative  duty  of  framing  siu'h  a  tariff.  TIk^  courts 
merely  restrain  what  is  unreasonable.  The  states  have  at- 
tempted to  provide  the  administrative  machinery,  but  since 
the  question  of  reasonableness  is  a  judicial  one.  the  work  of 
commissions  must  always  be  open  to  revision  by  the  courts  ami 
to  possible  destruction  without  the  substitution  of  something 
better.  It  should,  moreover,  be  noted  Unit  a  statute  imposing 
simply  a  penalty  for  charging  more  than  a  just  and  reasonable 
compensation,  without  fixing  any  standard  to  determine  what 
is  just  and  reasonable,  has  been  held  unconstitutioiuil  because 
it  leaves  the  criminality  of  the  carrier's  act  to  tiepenil  upon 
the  jury's  view  of  the  reasonableness  of  the  rate.''  This 
view  would  not   extend   to   a   statute   giving   or    withholding 


5  143  U.  S.  339.  sSinytli  v.  Aiiics.   Itiii  l'.  S.  4ljli. 

cSo  also  St.  Louis  &  S.  F.  K.  Co.  '>  Louisville  &  Xaslivillo  R.  Co.  v. 

V.  Gill,  54  Ark.  101,  11  L.  Tf.  A.  452.  Commonwealth,    99    Ky.    13-J.  :W    ^.. 

'  154  IT.  S.  362.  R-  -^^-  -^^-     i^i't'  §  -^  supra. 


396  BUSINESS  AlTEt'TED  AVlTll    PUBLIC  IN'TEBEST.       §  385 

merely  civil  remedies  in  case  of  unreasonable  charges,  for  it 
was  said  in  Munn  v.  Illinois i^*^  "In  matters  whicli  affect  the 
public  interest,  and  as  to  which  legislative  control  may  be 
exercised,  if  there  are  no  statutory  regulations  upon  the  sub- 
ject, the  courts  must  determine  what  is  reasoimble."  But 
an  act  should  not  be  made  penal  without  being  detined  to  a  com- 
mon certainty. 

^  385.  Judicial  regulation.  — In  order  to  satisfy  the  principle 
tliat  the  question  of  reasonableness  can  be  determined 
only  by  due  process  of  law,  the  legislature  of  the  state  of 
Kansas,  convened  in  special  session  for  that  purpose,  created 
a  Court  of  Visitation  for  the  establishment  of  railroad  rates. 
This  court  was  vested  with  full  common  law  and  equity  powers, 
and  its  final  decrees  were  made  reviewable  by  the  Supreme 
Court  on  petition  in  error.  The  court  was  vested  with  juris- 
diction to  try  and  determine  nil  ([uestions  as  to  what  are 
reasonable  freight  rates  for  the  transportation  of  property 
])etween  points  in  the  state,  to  apportion  charges  between  con- 
necting roails,  to  classify  freight,  to  require  the  construction 
and  maintenance  of  facilities  for  public  convenience,  to  compel 
reasonable  and  impartial  tram  and  car  service  for  all  ])atrons 
of  the  railroad,  to  I'i'Liulatc  ci-ossings  and  i)rescribe  rnles  for 
safety,  and  to  restrict  railroad  corporations  to  opciations 
within  tlieii-  chai-ter  powers.  Proceedings  were  to  be  insti- 
tuted in  this  couft  in  Ihc  name  of  the  stale  hy  the  State 
Solicitor  npon  complaint  of  unreasonable  charges,  oi-  discrim- 
ination, oi'  violation  of  law  or  negh^'t  of  dnty,  the  decree  of 
the  court  to  ailjndge  what  are  reasonable  rates  for  each  and 
every  charge  and  sei-vice  at  issue  in  the  ease,  and  perpetually 
enjoining  tin*  defeiidant  I'foni  ih'niaiidiMg.  charging  or  receiv- 
ing any  olhci-  or  different  I'atcs  oi-  chai'ges  than  those  deter- 
mined liy  the  decree  to  he  re;isona hie.  The  burden  of  |H'oot' 
upon  any  lirst  deteniiinat  ion  as  to  what  was  re;isoii;d»le  was 
imposed  upon  the  railroad  company;  upon  seeking  any  change 
from  this  lirst  determinal  ion.  tin'  complain.iut  was  to  |M'ove 
linil    it    had   become   unn-asonahle.' ' 

The  Supi'cme  ('(Mirl  id'  K'ansas  held  fh.-H  ihe  court  (d'  visita- 
tion was  it  court  for  the  determination  of  cont  roxcrsies,  and 
was  at  the  Kaino  time  vested  with  legislati\c  I'uik  lions  h>' 
hf'JMg    given    pow<'?"    to    establish    general    schedules    u\'    rates; 

i"'.tl    U.   .S.    113.  H  .\r|    (if  .):iim;ov   :',,    1  M!»!). 


§  386  JUDICIAL  REGULATION.  397 

that  this  confusion  of  judicial  and  legislative  functions  vio- 
lated the  principle  of  the  separation  (^f  powers  and  that 
the  act  was  therefore  unconstitutional. '- 

A  statute  of  ^Massachusetts  regulatinjU'  the  water  supply  of 
certain  towns  and  cities  provided:  "The  selectmen  of  a  town 
or  any  persons  deeming  themselves  aggrieved  hy  the  price 
charged  for  water  by  any  company  may  in  the  year  1898  and 
e\ery  fifth  year  thereafter  apply  by  petition  to  the  supreme 
judicial  court,  asking  to  have  the  rate  fixed  at  a  reasonable 
sura,  *  *  *  ;iiij  two  or  more  judges  of  said  court  after 
hearing  the  parties  shall  establish  such  maxiimini  rates  as 
said  court  shall  deem  proper;  and  said  maximum  rates  shall 
1)e  binding  upon  said  Avater  company  until  the  same  shall  be 
revised  and  altered  by  said  court  pursuant  to  this  act." 

It  was  urged  that  the  provision  was  unconstitutional  as 
transferring  to  the  court  legislative  powers,  thereby  violating 
the  principle  of  the  separation  of  powers.  The  court  admitted 
the  plausibility  of  the  contention,  but  preferred  to  interpret 
the  act  in  such  a  manner  as  to  sustain  its  validity.  It  therefore 
held  that  the  judgment  of  the  court  was  binding  only  upon 
the  parties  before  it,  and  that  the  legislature  only  secondarily 
adopts  the  rate  thus  fixed  between  the  parties  as  a  general 
rate  for  all.  "If  this  is  so,  the  question  whether  such  a  legis- 
lative consequence  can  be  attached  to  the  decision,  is  not 
before  us."^^ 

REQUTEEMENT  OF  EQUAL  SERVICE.   §§  386-394. 

§  386.  To  what  kinds  of  business  applicable.— By  the  com- 
mon law  the  obligation  to  render  to  all  alike,  at  the  customary 
rates,  the  ordinary  services  for  which  the  business  is  estab- 
lished,^-* to  the  extent  of  its  available  resources,  is  imposed 

Instate  V.  Johnson,  61  Kan.   803,  whose  business  is  not   tr:ivoI.  hnt   to 

(i()    Pac.    1068,    49    L.    R.    A.    662.  tlo   business  with   the   travellers,   so- 

See,  also,  as  to  illegality  of  delega-  lieiting  their  patronage,  &e.    Jeneks 

tion  of  legislative  power  to   courts,  v.  Coleman,  2  Sumn.  221,  1835.    The 

Nebraska     Tel.     Co.     v.     State,     55  D.     R.     Martin,     11     Blateh.     233; 

Neb.   627;   Norwalk  Street  R.   Co. 's  State  v.  Steele,   106  N.  C.   766.     So 

Appeal,  69  Conn.  576.  the  business  of  the  innkeeper  is  to 

13  Re  Janvrin,   174   Mass.   514,  55  entertain  travellers,  not  to  keep  per 

N.  E.  381.  manent    boarders.      Lamond    v.    Tlie 

i*The     ordinary     service     of    the  Gordon   Hotel,  Limited,    1897.    1    Q. 

( (uninon  carrier  is  transportation,  he  B.  541. 
is  therefore  not  bound  to  carry  one 


398  BUSINESS  AFFECTED  WITH   PUBLIC  IMTEEEST.       ^  387 

upon  the  common  carrier  and  the  innkeeper,  the  common  far- 
rier, and  the  owner  of  a  public  mill.  There  is  at  present  some 
tendency  to  enforce  a  similar  duty  against  some  other  kinds 
of  business  on  the  ground  that  they  are  affected  with  a  public 
interest.  So  it  was  held  in  Illinois,  that  where  tlu^  Chicago 
Board  of  Trade  had  voluntarily  engaged  for  years  in  compiling- 
market  quotations  and  of  furnishing  the  same  for  a  considera- 
tion by  telegraph  to  all  members  of  the  public  who  desired 
to  obtain  them,  whereby  the  business  of  buying  and  selling- 
agricultural  products  throughout  the  country  had  been 
brought  under  the  control  of  market  prices  fixed  and  deter- 
mined by  the  board,  the  board  had  by  its  own  act  so  far  im- 
pressed on  these  quotations  a  public  interest,  that  it  should 
be  required  to  furnish  them  to  all  without  discrimination.^^* 
Again,  in  a  later  case,  it  was  held  by  the  same  court,  that 
the  Associated  Press  having  sold  its  news  reports  to  various 
newspapers  who  became  members,  and  the  publication  of  such 
news  having  become  of  vast  importance  to  the  public,  it  had 
so  used  its  franchise  as  to  cliarge  its  business  with  a  public 
interest,  and  that  therefore  all  newspaper  publishers  desiring 
to  purchase^  such  news  for  publication  were  entitled  to  pur- 
chase the  same  without  discrimination  against  them.^"^  But  in 
a  similar  case  this  view  has  been  repudiated  by  the  Supreme 
Court  of  ]\rissouri.^^ 

vj  387.  Equal  and  sufficient  service.— The  same  duty  is. 
moreover,  recognised  and  enforced  with  regard  to  tliose  classes 
of  business  in  connection  with  which  sp(>cial  ])owers  and  ])riv- 
ileges  are  exercised,  so  with  rcgjii-d  1o  railroad  coini)Miii(>s 
which  are  vested  with  llic  powci-  of  consistent  domain,  and 
others  using  streets  iind  highways  in  a  special  manner,  for 
1fac|\s.  pipes,  |)(»h's  ;ind  wires.  Some  of  Hk'sc  being  common 
carriers,    ;ife    subject    \n    the    eomiiKni    l;iw    (lut\'    above   statiid  ; 


in  New    Nrirk    &   f'liicago   (!!;iiii    &  wns    t'nrniprly,   in   ficniiMiiv,    iriiixiscd 

Stoc-k    KxcliiHij^c    V.    Cliicjigo    Mil.    of  upon    pliyHicinns,    l)nl    wns   ;il)()li,sli(<(l 

Trado.  I'J?   III.   l.^..'},    IS   I,.   R.  A.  ryfyH.  ]>y        iin|.eri;il        lo;,'isl:il  ion,       (Joortr 

in  Inter    Occnn    I'nhlisliinj^    Co.    v.  .Mover      Vcrwnltnngsri'clit,      p.      221. 

AHHoriatod   Ph'hh,   ]M4    III.  -1.38.  No  hikIi  oI. ligation  rests  upon  pliysi- 

17  State    ex    rel.    Star    I'niilisliinj,'  cianH   in    American    states   lillur   l>v 

Co.    V.    AsHoeiatcMl     Press,     l.'iH     .Mo.  eoinnion    law   or   by   statute,     lluriev 

410,  rj]   L.  H.  A.  1.11.  V.    Ivl.linnliel.l,    !.'■)()    Ind.   410,   51)   N. 

An    obligation    to    render   scrvlccH  H.  ]0.'38,  .13  L.  ]i.  .\.   1.3.5. 


^388  KEQUIKEMENT    OF    EC^UAL    SERVICE.  I^^;, 

and  all  of  them  operating  as  a  rule  under  corporate  charters 
and  under  specific  public  grants,  have  assumed  certain  ohlif^a- 
tions  toward  tlie  public.  The  extent  of  tills  obligation  is  not 
easy  to  deline,  but  seems  to  exceed  that  of  the  common  law. 
The  (juestion  is  chiefly  as  to  the  extent  of  the  service  to  be 
rendered.  At  common  law  the  carrier  and  innkeeper  were 
bound  to  render  service  only  to  the  extent  of  their  available 
accommodation/^  but  this  it  seems  is  not  the  whole  measure 
of  duty  of  a  public  service  company,  which  as  a  rule  by  the 
terms  of  its  charter  is  bound  to  maintain  a  service  sufficient 
to  meet  the  public  demand,  so  far  as  it  can  be  done  in  the 
nature  of  things,  and  in  accordance  with  the  ordinary  condi- 
tions of  business.^  ^  Inevitable  inadequacy  of  service,  however, 
does  not  excuse  arbitrary  or  prejudicial  discrimination,^"  and 
such  discrimination  gives  rise  to  a  private  cause  of  action, 
as  well  as  the  refusal  to  render  a  service  which  the  pul)li<* 
service  company  is  able  to  provide.^^ 

§  388.  Grounds  of  requirement.— Where  a  business  enjoys 
special  privileges  as  to  the  use  of  public  streets,  or  otherwise 
exclusive  rights  (as  in  the  case  of  a  ferry  franchise),  the  duty 
of  equal  service  is  easily  justified  as  a  condition  necessary  to 
render  the  special  grant  consistent  with  the  public  interest. 
So  in  the  Board  of  Trade  and  Associated  Press  cases,  the  ele- 
ment of  a  de  facto  monopoly  clearly  entered  into  the  consid- 
eration of  the  court.  But  this  element  is  conspicuously  absent 
in  the  case  of  the  innkeeper,  and  does  not  necessarily  belong 

IS  Jackson    v.    Eogers,    2    Shower  345,  where  an  insufficient  supply  of 

327   (Eng.  K.  B.),  1683,  action  for  natural  gas  was  held  not  to  excuse 

refusing   to   carry   goods.      "It   was  Ihe   refusal   to   serve   one   particular 

alleged  and  proved  that  he  had  con-  person.    Quaere,   whether   in   such   a 

venience  to  carry  the  same. "  case   priority   of   application   should 

10  Ballentine    v.    North    Missouri  not  be  held  to  satisfy  the  demands 

R.  R.   Co.,  40   :\Io.   491.     The  terms  of    equality.      As    to    preference    of 

of  charter  or  statute  must  be  scru-  perishable       o  v  c  r       non-perishable 

tinised  in  every  case  in  order  to  de-  freight    see    Tiorncy    v.    New    York 

termine  whether  there  is  a  duty  or  Central   &  H.   R.   R.   Co.,   70   X.   Y. 

a   discretionary  power.     See  People  305.                      , 

v.  New  York,  L.  E.  &  W.  'R.  R.  Co.,  21  Ayres   v.   Chicago   &   N.   W.   K. 

104  N.  Y.  58;  State  v.  Kansas  Cen-  R.  Co.,  71  Wis.  372,  37  N.  W.  432; 

tral  R.  R.  Co.,   47  Kans.  497.     See  Chicago  &  A.  R.  R.  Co.  v.  Erickson, 

§   395,  infra,  and  note  43  L.  R.  A.  91   111.  613.  _See^  also.^^taje  jex  rel 
225. 


Atwater  v.  Del.  L.  &  W.  R.  Co.,  48 


20  See  State  ex  rel.  Wood  v.  Con-      N.  J.  L.  55,  2  Atl.  803. 
sumers'    Gas    Trust    Co.,    157    Ind. 


400  BUSINESS  AFFECTED  WITH    PUBLIC  INTEREST.      §  388 

to  the  business  of  the  common  carrier.  The  obligation  of  the 
innkeeper,  the  common  carrier  and  the  common  farrier  is 
j)erhaps  most  satisfactorily  explained  as  due  to  the  policy  of 
the  law  to  give  special  protection  to  strangers  and  travellers, 
their  entertainment  being  regarded  in  earlier  stages  of  civilisa- 
tion as  a  semi-public  duty.--  Blackstone  explains  the  obliga- 
tion of  the  innkeeper  by  sayiiig  that  if  he'  hangs  out  a  sign 
and  opens  his  house  for  travellers,  it  is  an  implied  obligation 
to  entertain  all  persons  who  travel  that  way;  and  npon  this 
universal  assumpsit  an  action  on  the  case  will  lie  against  him 
for  damages  if  he,  without  good  reason,  refuses  to  admit  a 
traveller.--'  This  theory  might  be  applied  to  any  business 
in  which  services  or  goods  are  offered  indiscriminately  to  the 
public  and  in  which  no  special  arrangements  are  required  witli 
each  person  who  is  to  be  served  or  supplied.  It  would  only  be 
necessary  to  provide  that  the  customer's  expression  of  his 
willingness  to  take  shall  be  construed  as  an  acceptance  of  the 
offer  implied  in  the  bid  for  public  patronage,  which  would 
thus  ripen  into  a  contract  at  the  option  of  any  person  who  is 
willing  to  ])ay  at  the  rates  at  which  the  services  or  goods 
are  offered  to  all.  But  upon  this  theory  the  legal  provision 
would  not  prevent  anybody  from  setting  up  in  business  and 
giving  notice  at  the  same  time  that  he  reserves  the  right  not 
to  deal  Avith  particular  persons  or  with  certain  classes  of 
persons.^-*  At  common  law  a  person  may  carry  another  ])er- 
soii  oi-  his  goods  by  special  contract  without  becoming  thereby 
a  common  carrier,^'''  and  a  man  may  offer  to  carry  for  hi  it 
only  incidentally  to  another  l)usiness  and  as  occasion  may 
serve;-"  in  eitlii'r  case  there  would  ])e  no  obligation  to  carry 
without  a  special  contract  to  that  effect;  a  person  may  also 
li(il(i  liiuiself  out  as  a  common  carrier  for  certain  kinds  of  goods 
or  1  r;iiis|i(ii-t;it  imi  only;-'  Imt  il  is  ;i  vei-y  (lifrei-eiit  (|uesti()ii 
wlietlief  ;i  |-esei'V;it  inn  ol"  the  cli;!  |-;ict  (T  indicnled,  wliei-ehy  |);il'- 
licnhir   pei'sons  or   p.-irt  icul;ir  (dnsses  of  pei'sons  iii'c   exdnded, 

'■'-Hoe    jiociiliar    jiroviHioiiH    reflect-  -f^' Allen     v.    Snckrider,    'M     X.    V. 

in^f    Hiis    view    in    liCX    ViHi^jfiflioniin  'M\. 

VI,   4,   •!;    IX,    1,   (5,    H,    21;    Xil.    :'<.  -•"  (ionln.i    v.    1 1  utrliin.soii,    I     \V.   & 

liO,   Lex  BurKiinilionjim  38,    I.  S.  L'Sf.. 

lalMnekHfone    III.    liWi.  -'7  .I<)linH(.n    v.    Miiji.in.l    11.    \(.    Co., 

'.«<  See   Mowlin   v.    I,_vnn,  <i7    hi.  r,:\r,,  I    Dx.li.    :'.(i7. 
LT)   N.   \V.   7(5(1,  .'■.(•  Am.    Rep.   :^r,rK 


ij  389  OlMKCTS   or    DISCIMMIXATION.  .jO] 

would  be  valid,  and  it  seems  that  such  a  i-i'si-rvalinn  caniKil  In- 
inade.28 

S  389.  Objects  of  discrimination.  — Thu  (lut-siion  wht'tluT 
the  law  may  require  equal  sltvIcc  becomes  important  iti  thr 
following  classes  of  cases : 

First,  where  the  ow^ner  of  the  business  cxckuk's  (M-rtain 
classes  of  persons  by  reason  of  social  prejudice.  It  is  against 
discrimination  of  this  kind  that  the  so-called  civil  rights  stat- 
utes are  directed.  These  statutes  will  be  referred  to  again  in 
connection  with  the  subject  of  race;  their  constitutionality  has 
been  recognised.-^  It  seems  that  such  discrimination  may  be 
forbidden,  wherever  the  offer  of  services  is  otherwise  general. 
HoAvever,  the  civil  rights  acts  are  commonly  confined  to  classes 
of  business  held  to  be  affected  with  a  public  interest,  and  to 
places  of  public  amusement,  and  the  courts  seem  inclined  to  in- 
terpret their  provisions  strictly."^ 

Second,  where  the  discrimination  is  a  means  emploj^ed  to- 
ward monopolising  some  branch  of  business,  as  where  the 
seller  makes  it  a  condition  of  selling,  that  the  buyer  shall 
not  deal  with  a  competitor,  or  where  the  facilities  of  a 
business  are  refused  to  one  who  competes  with  the  owner 
of  the  business  or  with  one  whom  the  latter  wishes  to  favor. 
A  statute  forbidding  such  discrimination  would  virtually  be 
a  statute  for  the  prevention  of  a  monopoly,  and  would  be  valid 
even  though  without  the  statute  the  practice  were  not  illegal.'" 
This  was  recognised  in  the  case  of  stock  yard  companies  with- 
holding their  facilities  on  the  grounds  indicated.  The  Supreme 
Court  of  Illinois,  w^hile  refusing  to  enforce  the  admission  of  a 
member  to  the  Chicago  Live  Stock  Exchange  intimated  that 
the  character  of  a  public  market  could  be  established  by 
statute,  and  it  was  said   in  New  Jersey  in  a  case  declaring 

28  Bennett  v.  Button,  10  N.  H.  •"'i  In  the  case  of  railroad  com- 
481    1839.  panies   the   practice   is   illegal   with- 

29  See  §  694,  infra;  People  v.  out  a  special  statutory  provision, 
King,  110  N.  Y.  418,  1  L.  R.  A.  Chicago  &  N.  W.  R.  R.  Co.  v.  Peo- 
293;  Baylies  v.  Curry,  128  111.  287;  pie,  .56  111.  365;  so  also  with  regard 
Ferguson  v.  Gies,  82  Mich.  358;  to  telegraph  and  telephone  busi- 
Messenger  v.  State,  25  Nebr.  674,  ness.  Chesapeake.  &-c.,  Telophono  Co. 
41  N.  W.  638.  V.  Baltimore,   &c.,   Tel.   Co..   66   Md. 

•50  Commonwealth  v.  Sylvester,  13  399;  see  also  People  ex  rol.  Postal 
Allen  247;  Cecil  v.  Green,  161  111.  Tel.  Co.  v.  Hudson  River  Tol.  Co., 
265,  43  X.  E.  1105.  19  Abb.  N.  C.  466. 

26 


402  BUSINESS  AFFECTED  WITH    PUBLIC  INTEREST.       §  39O 

that  a  stock  yards  company  would  not  be  compelled  to  receive 
cattle  shipped  by  a  railroad  company,  that  public  authority 
must  first  intervene  l\v  rep'ulations  declaring-  the  public  use 
and  control. •^- 

It  seems,  therefore,  that  where  the  refusal  t<>  serve  is  based 
ui)on  some  ground  contrary  to  public  policy  which  otherwise 
affords  a  legitimate  occasion  for  the  exercise  of  the  police 
power,  such  refusal  as  Avell  as  the  exaction  of  unreasonable 
discriminating  terms  may  l)e  made  illegal. 

Third,  discrimination  also  assumes  the  form  of  showing 
special  favors  to  some  party  whose  patronage  is  especially 
valuable  to  the  business.  It  is  this  kind  of  discrimination 
with  which  railroad  companies  have  been  especially  charged. 
Where  large  and  regular  shipments  permit  economies  not 
otherwise  possible,  the  lower  rate  to  the  larger  shipper  is 
not  in  reality  Hn<'(|ual  treatment;  and  the  common  law  does 
not  forbid  such,  if  indeed  it  foi'bids  any  diseriminatioii  not 
involving  unreasonable  charges  or  a  refusal  to  serve. •'•'  A 
statutory  prohibition  of  unjust  discrimination  is  maiidainable 
to  the  same  extent  thai  business  may  be  required  to  be  done  on 
reasonable  terms.  In  the  case  of  railroad  companies  the  jjrac- 
tice  is  perhai^s  illei^jil  without  special  legal  provision,  on  ac- 
count of  the  monopolistic  character  of  the  business  and  the 
speci;il   iirivilcu-es  which  it  enjoys. •"" 

§390.  Legislation  against  discrimination.— Legislation  of 
an  economic  diai'acter,  (as  distinguished  from  the  civil  rights 
legislation)  i-eciuiring  service  Avithout  disci-imination  has  been 
enacted  in  America  cliiefl\'  wilh  regjird  to  i-ailroad  com- 
panies.-'"' Statutes  based  uimii  1  he  same  pi-inciple  exist  with 
I'egard  to  wmitIiouscs  oI"  grain,'"'  and  tobacco,'''   telegrajih  and 

^2  Amori<-;ni  I^ivo  Stock  Commis- 
)-i(»n  Co  V.  Chieago  Live  Stock  I'x- 
<•ll:ln^.^  143  Til.  I'lO;  Dchiwiirc,  1.. 
iV  \V.  ]{.  Co.  V.  Contriil  Stock  Y:ir<ls 
\  Tran.sit  (.'o.,  45  X.  J.  Eq.  50. 

:'3Cirnat  WeHtcrn  R.  Co.  v.  Siiddii, 
L.  K.  4  TI.  E.  226,  2.37;  Cowlcii  v. 
Pacific  Const  ft.  S.  Co.,  94  Cal.  tTd; 
liOd^li  V.  Diitfiliriilpo,  143  N.  ^'. 
271. 

«*  McDiitTof  V.  I'niil;in«l.  &c.  H. 
R.  Co..  52  \.  11.  I.'t";  Louisville, 
&.<■.,  H.  Co.  V.  Wilson,  1.32  TihI.  517; 


W( 

'Sl( 

'I'll       I'liioii 

T(^ 

1. 

Co 

.        V. 

Call 

I'll 

ibl 

'g    Co.. 

t  1 

x.-: 

I>. 

:?2( 

1) ;     coiiira. 

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•    I 

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•K    1 

\i.  i 

< ). 

\ . 

C,:\go,    12 

Cr 

:iy 

;<'.i:?; 

.l<.li 

insoii 

1 

V. 

Pciisacola, 

\-.- 

.,    1 

a".    Co., 

1(1 

Fla. 

6; 

23. 

See 

note, 

IS 

L. 

K.  A. 

105, 

■''•  Stimsoii 

A 

n:. 

SI 

111. 

^.■.\\^ 

1  1. 

ss:{7. 

1: 

■'■<■  1 

Ilinois 

Ad 

.\,.i 

11 

'--'5, 

1S7I, 

S<'.'. 

' '. 

:i7  " 

S'ash     V 

.     1 

>:.«.-, 

M(l 

K.v. 

.■.:',!>, 

I>ii 

\VH 

§  4H1.3 

§391  UNJUST    I)J  SCR  I. MIX  A!' I  UN.  4(,;{ 

telephone  corporations,"''^  and  news  agencies.-'"  Life  insuranec 
companies  have  been  prohibited  from  discriminatinji:  betwei'ii 
individuals  of  the  same  class  or  the  same  expectation  of  life, 
or  between  white  and  colored  persons.*"  In  Kansas  and  N«»- 
braska,  in  1897,  stock  yards  doing  a  stated  amount  of  business 
were  declared  by  statute  to  be  public  markets.-" 

§391.  What  constitutes  unjust  discrimination.  — With  re- 
gard to  railroad  companies  attempts  have  been  made  to  formu- 
late, with  some  fullness,  what  constitutes  unjust  or  ilU'gal 
discrimination.  So  the  Interstate  Commerce  Act  makes  it  un- 
lawful directly  or  indirectlj^  to  charge  any  person  a  greater 
or  less  compensation  for  any  service  in  transportation  than 
it  charges  any  other  person  for  doing  a  like  and  contempo- 
raneous service  in  the  transportation  of  a  like  kind  of  traffic 
under'  substantially  similar  circumstances  and  conditions  ;■*- 
also  to  give  any  undue  or  unreasonable  preference  or  advantage 
to  any  person,  locality  or  ijarticular  kind  of  traffic,  or  to  sub- 
ject the  same  to  any  undue  or  unreasonable  prejudice  or  dis- 
advantage ;-*3  also  to  charge  or  receive  any  greater  compen- 
sation in  the  aggregate  for  transportation  of  passengers  or 
of  like  kind  of  property,  under  substantially  similar  circum- 
stances and  conditions,  for  a  shorter  than  for  a  longer  distance 
over  the  same  line  in  the  same  direction,  the  shorter  being 
.included  in  the  longer  distance.^^ 

By  speaking  of  "substantially  similar  circumstances  and 
conditions"  the  act  makes  it  clear  that  no  mechanical  rule 
of  equality  was  intended  to  be  enforced.  The  Supreme  Court 
adopting  the  language  of  the  lower  court,  says: 

"In  respect  to  passenger  traffic,  the  positions  of  the  re- 
spective parties  or  classes  between  whom  differences  in  charges 
are  made,  must  be  compared  with  each  other,  and  there  nuist 
be  found  to  exist  substantial  identity  of  situation  and  of  serv- 
ice, accompanied  by  irregularity  and  partiality  resulting  in 
undue  advantage  to  one,  or  undue  disadvantage  to  tlie  olli.'f. 

38  New   York   Gen.    Laws,    cli.    40,  See   Cotting   v.   Kansas   City   St.    Y. 

g  103.  Co.,  183  U.  S.  79. 

o9  Tennessee,    1899.  *- Sec.    2    of    Act;    also    an    a.l.li- 

40  New  York  Gen.  Laws,  chap.  38,  tional   act    against    rebates   of    F.'b. 

§§    89,    90;    Commonwealth    v.    Mor-  19,  1903,  3l'  Stat,  at  L.  S47. 

ningstar,  144  Pa.  St.   103.  *^  Se<'-  3  of  Act. 

"Nebraska  Gen '1  Laws  1897,  ch.  ^^  ^i^<'-  '^  <^f  •^<'^- 
8;     Kansas    Laws,    Sec.     7458-7465. 


404  BUSINESS  AFFECTED   WITH    PUBLIC  INTEREST,      §  ;jy2 

in  order  to  constitute  unjust  discrimination.''^*'*  Hence  it  was 
held  that  a  railroad  compan}'  ma}-  charge  reduced  rates  for 
excursions,  for  large  parties,  for  commutation  tickets,  etc. 
Results  may  have  to  be  taken  into  consideration  in  order 
to  determine  the  legitimacy  of  the  discrimination.  In  the 
case  of  passengers,  differences  in  rates  may  be  made  between 
those  using  the  road  to  a  greater  or  less  extent;  but  in  the 
case  of  merchandise  "even  if  the  same  reduced  rate  be  allowed 
to  every  one  doing  the  same  amount  of  business,  such  discrim- 
ination may,  if  carried  too  far,  operate  unjustly  upon  the 
smaller  dealers  engaged  in  the  same  business  and  enable  the 
larger  one  to  drive  them  out  of  the  market."'*^ 

jj  392.  Circumstances  justifying  discrimination.— The  diffi- 
culty of  determining  what  are  substantially  similar  circum- 
stances and  conditions  appears  from  the  radically  different 
interpretation  placed  upon  these  words,  as  used  in  Section 
2.  and  as  used  in  Section  4  of  the  act.  Under  Section  2  it  was 
held  that  a  railroad  company  may  not  charge  for  transporting 
beer  from  Cincinnati  to  Pittsburg  a  smaller  rate  to  A  than  to 
H.  ])ecause  A's  warehouse  is  directly,  upon  the  line  of  another 
road,  by  the  use  of  which  lie  would  save  the  expense  of  cart- 
age ;  in  other  Avord§,  that  under  this  section  competition  does 
not  create  dissimilarity  of  conditions  justifying  discrimina- 
tion.^" 

Under  Section  4  of  the  same  act  it  was  held  that  a  railroatl 
company  may  charge  a  greater  rate  of  freight  from  the  East 
to  Chattanooga  than  it  charges  for  the  longer  distance  to  Nash- 
ville, because  in  its  Nashville  business  it  has  to  meet  the  com- 
petition <>r  I'djuls  I'litiiiiiiL;'  IVdiii  the  North. '■'^  In  lliis  case, 
tlpii.  «'i)iiii)otition  does  create  dissimilarity  of  condition  justify- 
ing discrimination,  'i'his  priiu'iple  had  lieforc  l)een  recognised 
and  the  different  1  i-c;itiiient  of  cnnipctitioii  iitidcr  Section  2  ;iii(l 
Section  4  of  tile  Act  explained  as  resulling  iVoni  the  diriVi'eiicc 
of  the  purposes  of  the  two  sections,  although  it  was  not  stated 
wiiercin   that  (lin'ererice  of  purpose    lay.'-'      In    the   East  Ten- 

^i  Intcratat*'    r'omiiu'rcf    ('<iiiiniiH-  S.   .OIL';    conlra,    K'ajriin   &   T^uffot    v. 

Bion  V.  Baltinior*^  &  (Jliio  1{.  Co.,   ItT)  Aiken,  9  TiOa   (Tcnii.)   (lOit. 
U.  S.  263.  ■"*  Kast    'rciiiicHHCo,    V:i.    &    (!:i.    |{. 

♦I  IiitcrMt.'ito     Cornmrrco     ConimiH-  <'o.     v.     I  nlcrstatc     ('(imiiicrcc     <'nni- 

eion  V.  Baltimore  &  Ohio  U.  Co.,  14r)  tnisHinii,    \s\    U.  ,S.    1. 
U.  S.  203.  ■•"  IiilcrHtate     Commerce     CoiiiiniH- 

«7  Wijrlit   V.  United  SfiiteH.    \Cu    U.  Hion  v.  Alabama    Midland    K'.   h'.  Co., 

168   U.  S.    1  »1. 


§392  JUtSTli'iAliLE    DI«CK1.M1NAT1UX.  4(j5 

nessee  case  the  Supreme  Court,  in  answer  to  the  ar«,'iun(*nt  that 
the  principle  adopted  "would  be  placing  Congress  in  the  absurd 
position  of  laying  down  a  rule,  and  then  providing  that  the 
rule  should  not  be  enforced  in  the  only  cases  in  which  viola- 
tions of  the  rule  were  known  to  exist,"  said:     '*In  substance 
this  reasoning  only  amounts  to  the  assertion  that  tiie  settled 
construction  of  the  statute  by  which  it  has  been  held  that  real 
and   substantial   competition    gives   rise   to   the   dissimilarity 
of  circumstances  and  conditions  pointed  out  in  the  fourth  sec- 
tion, is  wrong  and  should  be  overruled."    The  court  now  for- 
mulates the  principle  that  "competition  which  is  real  and  sub- 
stantial,  and   exercises  a  potential  influence  on    rates    to    ;i 
particular  point,  brings  into  play  the  dissimilarity  of  circum- 
stances and  conditions  provided  by  the  statute,  and  justifies 
the  lesser  charge  to  the  more  distant  and  competitive  point 
than  to  the  nearer  and  non-competitive  place,  and  that  this 
right  is  not  destroyed  by  the  mere  fact  that  incidentally  the 
lesser  charge  to  the  competitive  point  may  seemingly  give  a 
preference  to   that  point,   and  the   greater  rate  to  the  non- 
competitive point  may  apparently  engender  a  discrimination 
against  it."'   It  adds:     "That,  as  indicated  in  the  previous 
opinions  of  this  court,  there  may  be  cases  wdiere  the  carrier 
cannot  be  allowed  to  avail  of  the  competitive  condition  because 
of  the  public  interests  and  the  other  provisions  of  the  statute, 
is  of  course  clear.     *     *     *     Take  a  case  where  the  carrier 
cannot  meet  the  competitive  rate  to  a   given  point  without 
transporting  the  merchandise  at  less  than  the  cost  of  trans- 
portation, and  therefore  without  bringing  about  a  deliciency, 
which  w^ould  have  to  be  met  by  increased  charges  upon  other 
business.     Clearly,  in  such  a  ease,  the  engaging  in  such  com- 
petitive traffic  would  both  bring  about  an  unjust  discrimina- 
tion and  a  disregard  of  the  public  interest,  since  a  tendency 
towards    unreasonable    rates    on    other    business    would    arise 
from  the  carriage  of  traffic  at  less  than  the  cost  of  transporta- 
tion to  particular  places."^" 

fio  181   U.   S.   1,   19,   20. — In   Ken-  istrative   body,    but    unobjoctionable 

tucky   the  railroad   commission   may  because  expressly  authorised   by  the 

in  special  cases  authorise  a  railroad  constitution    {§    21S).      Sec    Illinois 

company  to  charge  less  for  a  longer  Central  li.  K.  Co.  v.  Commonwealth, 

than    for    a    shorter    distance    (Ky.  23   Ky.    Law   Rep.    1159,   64    S.    W. 

Stat.    §    820,    821).      This   is   a   dis-  975. 
pensing  power  vested  in   an   admin- 


406  BUSINESS  AFFECTED  WITH   PUBLIC  INTEEEST.      §  393 

§  393.  Discrimination  allowed  or  prescribed  by  law.— It  is 
here  only  necessary  to  advei't  to  the  eonstiUitional  aspect  of 
the  legislation  determining-  conditions  of  equality.  There  are 
three  questions  which  may  arise  in  this  connection:  first,  may 
the  legislature  conclusively  determine  that  certain  discrimina- 
tions are  allowable?  second,  may  it  prescribe  certain  discrim- 
inations? and  third,  may  it  require  that  certain  differences  be 
ignored  in  making  charges  for  services? 

T'pon  the  first  question  there  seems  to  be  no  judicial  author- 
ity. A  claim  on  the  part  of  the  courts  to  control  and  eventually 
to  disallow  a  discrimination  sanctioned  by  statute  would  have 
to  rest  oh  the  theory  that  there  is  a  constitutional  right  to 
equal  service,  that  in  other  words  the  business  rendering  the 
service  is  i)urel3^  a  public  agency,  and  that  for  the  state  to 
allow  it  unjustly  to  discriminate  is  a  deprivation  of  the  ecpial 
protection  of  the  law. 

As  for  the  second  question,  it  would  seem  that  if  the  legis- 
lature may  prescribe  equality,  and  if  equality  is  not  incon- 
sistent with  but  involves  proper  discrimination,  it  may  not 
only  allow,  but  may  insist  upon  discriminations  calculated  to 
cai-ry  out  the  i)rinciple  of  equality  with  greater  perfection 
and  accuracy.  When  the  validity  of  state  regulation  of  rail- 
road rates  was  first  iiplu'ld  hy  the  Supreme  Court,  it  was  also 
recognised  that  railroads  might  be  classiHetl  I'oi-  \he  purpose 
of  esta])lishing  different  rates, ^  and  it  was  held  later  on  Ihat 
if  the  classification  made  by  the  legislature  operates  uni- 
r<pniil\-.  the  courts  cannot  decide  Avhether  it  was  the  best  that 
could  liiivr  ix'cii  made.-  Logically,  llic  sanu^  ju-inciple  should 
apply  lo  dilTfrcnt  kinds  ol"  Irarfic  ui)()n  llic  s;inii'  road,  and  it 
is  indctMJ  inconceivable  liow  a  I'aili-oad  larilT  could  be  framed 
otherwise.  Yet  the  Suiitemc  ("oui-t  of  the  Tnited  States  has 
held  lli;it  ;i  slatule  of  .Michii^an  re(|uiring  the  sale  of  mileage 
tir-kets  at  a  reijiiriil  r.iji-  \\  as  a  rbil  rary  ami  unciiual  class  legis- 
lation   ;i||(|    liclicr    uneoiist  il  III  ioii;|l.''       It    Was    Hot    ('o|iti'll(|e(l    tlial 

the  reduced  r;ite  was  unn-asonabie ;  in  I'.ict,  llie  eoiii|>aiiy  had 
voliiiitai-ily  sold  mileage  li(d<i'ts  at  reduced  rales;  but  the  niei'c 
fact  that  the  legislature  has  established  general  niaxiiiiuiii  rates, 
is  held  siiflieient    to  condernii  a   law  eompelliii'.;'  ;i    |o\ver   rati'   in 

'  •hic'i^Cd,  n.     &     (.^.      |{.     ('(..     V.           •■'  li.-ikc    .SIkhc    &     M.    S.    I*'.    (.1.    v. 

Ir.wa,  S»4   U.  H.    1.1;-.                                        Sinilli.    17:?    U.   S.  (iSl. 

-'  l>(i\v     V.  I',ci.l<-liii;iii.     I'J.''.     U.     S. 
OSO. 


§  394  DISCRIMINATION    PKESClUbED    BV    LAW.  407 

favor  of  those  who  happen  to  use  the  road  mort'  than  others. 
"The  power  of  the  h'jiishitiire  to  enact  ^^[eneral  hiws  ret,'anl- 
ing  a  company  and  its  all'airs  does  not  inchide  the  power  to 
compel  it  to  make  an  exception  in  favor  of  some  particular 
class  in  the  community  and  to  c.i n-y  the  members  thereof  at 
a  less  Slim  than  it  lias  the  ri<;ht  to  charge  for  those  who  are 
not  fortunate  enough  to  be  members  thereof."     Yet  the  court 
admits  that  the  legislature  may  establish  certain  hours  of  the 
day  during  which  trains  shall  be  run  for  a  less  charge  than 
during  the   other  hours.      This  is  said   to   be   a   rate   for  the 
whole  public  during  those  hours,  and  not  a  discrimination  in 
favor  of  certain   persons.     The   court   does   not   say   whether 
compulsory  reduced  rates  for  excursion  or  commutation  tickets 
\vould  be  constitutional  or  not.    If  constitutional,  what  ground 
can  be  adduced  for  stopping  the  legislative  power  at  mileage 
rates?     If  mileage  ticket  holders  are  a  class,  why  not  com- 
muters?  and   why   not   that   part   of   the   public   which    is   in 
the  habit  of  riding  at  certain  hours  of  the  day  ?    If  the  mileage 
ticket  holders  are  a  class  in.  a  different  sense,  and  the  classifi- 
cation obnoxious  to  the  constitution,  why  should  the  railroad 
company  be   allowed   to   discriminate   in    their    favor?      The 
soundness  of  the  distinction  made  by  the  Supreme  Court,  as 
well  as  the  soundness  of  the  whole  decision,  from  which  the 
Chief  Justice  and  two  associate  justices  dissented,  may  well 
be  doubted.     It  might  well  be  argued  that  since  the  require- 
ment of  equal  service  is  essential  to  reconcile  the  existence  of 
a  monopoly  with  the  equal  protection  of  the  law,  all  monopolies 
ought  to  be  required  to  give  equal  service;  if  then,  any  discrim- 
ination is  tolerated,  it  is  because  it    does    not    violate,    but 
carries  out  the  principle  of  equality;  it  would  thus  follow  that 
any  discriminations  which  may  be  tolerated,  may  also  be  re- 
quired. 

The  decision  in  tlie  Smith  case  Avas  necessarily  follow<'d  by 
the  Court  of  Appeals  of  New  York,-*  but  the  requirement 
of  reduced  rates  for  mileage  tickets  was  held  valid  as  ap- 
plied to   corporations   created   after  the   passage   of  the   act.-"^ 

§  394.  Discrimination  forbidden  though  circumstances  dis- 
similar.—Third :  may  the  legishiture  forbid  diseriiiiiiiatioii 
where    circumstances    are    dissiiuibu- .'      May    it    especially    re- 

4  Beardsloy    v.    New    York,    L.    E.         ••  I'unlv  v.  Erie  R.  Co.,  162  N.  Y. 
&  W.   R.   C.^   162   N.   Y.   230,  56  N.     42,  .56  N.  E.  508. 
E.  -188. 


408  BUSINESS  AFFECTED  AVI  Til    PUBLIC  INTEEEST. 


§394 


tiuire  that  services  or  commodities  of  different  values  be  given 
and  paid  for  at  the  same  rates?  This  question  enters  into  the 
determination  of  the  validity  of  the  coal-weighing  acts  enacted 
by  a  number  of  states.  The  merchantable  quality  of  coal  being 
determined  by  the  size  of  the  pieces,  the  coal  delivered  by 
the  miner  is  put  through  a  screen  which  sifts  the  compara- 
tively worthless  small  or  slack  coal  from  the  valuable  lump 
coal.  The  lump  coal  is  then  weighed,  and  the  miner  paid 
•accordingly.  The  object  of  the  coal-weighing  acts  is  to  com- 
pel weighing  before  screening  so  that  the  miner  may  be  paid 
for  all  the  coal  mined  by  him.  In  so  far  as  the  effect  of  this 
would  be  to  make  the  operators  \)ny  the  same  price  for  su- 
perior and  inferior  coal  or  for  work  of  superior  and  inferior 
skill  and  care,  it  would  compel  equal  payment  for  unequal  re- 
turns. Upon  this  ground  the  coal-weighing  act  of  Ohio  was 
declared  unconstitutional.*' 

It  may  also  be  contended  that  reasonable  discrimination  is 
forbidden,  where  the  law  requires  that  incidental  services  be 
rendered  free  of  charge.  In  Kansas  a  statute  was  declared 
uncon.stitutional  which  required  that  where  a  carload  of  live 
stock  was  shippeil  the  usual  price  charged  therefor  should  in- 
clude transportation  of  the  shipper.  The  court  said:  "We  do 
not   mean   to  say  tlinl    the  legislature  is  powerless  to  declare 


nRe  Preston,  63  Ob.  St.  428,  59 
N.  E.  101.  In  Arkansas  this  ob.ice- 
tion  seems  to  Ix'  obviated  l)_v  pcr- 
niitting  the  operator  to  deilutt  tho 
weiplit  of  impurities  contained  in 
tlie  car  and  not  discoverable  until 
after  the  car  has  been  weijjhed. 
Woodson  V.  State,  (5!)  .\rk.  521,  Go 
S.    W.   41!."). 

Tiie  same  h<yislation  was  held 
in  llliiniis  to  impair  the  liberl.v 
of  contract.  Millet  v.  People,  117 
fll.  L".t4;  Hamsey  v.  Pe.)i)Ie,  Ml'  III. 
.180;  Hardin;:  v.  People.  Hid  III. 
4.')9,  \:',  .\.  K.  r,Jt.  It  wonid  seem 
that  the  law  coidd  re(|nire  that  the 
<ij)erators  sliould  jiay  for  all  coal 
they  used,  tlionyh  at  rnles  ajjreed 
upon  witli  the  ?niner,  in  other  words 
that     the     operators     could     be     for 

l.iil.liii    I..    !ii:il<i.    ;i    iiiiilr;ii(    by    wllicdl 


they  would  get  scfinething  in  return 
for  notliinf;^.  The  Illinois  statute 
of  Is;i7  wliicli  apparently  was  en- 
acted for  that  puri)ose,  was,  how- 
ever, interpreted  as  leaving  the  free- 
dom of  contract  unimpaired,  and 
was  thus  rendered  meaningless; 
Whitebreast  Fuel  Co.  v.  People.  17:' 
III.  ol.  51  N.  E.  853.  A  coal 
weighing  act  of  Ivansas  was  sus- 
lained  as  requiring  weighing  nu^rely 
for  the  purpose  of  securing  infor- 
mation and  as  having  no  elVect  upon 
the  rale  of  payment.  State  v.  Wil- 
son, (il  Kan.  :tL',  17  1,.  h'.  .\.  71. 
That  the  law  may  not  require  rail- 
road <ompanies  Ir)  make  the  same 
charges  for  a  longer  as  for  a  shorter 
haul  see  State  v.  Sioux  City,  &e.,  R. 

I?.  Co..  in  \.-b.  csL'.  n.'  X.  w.  7Gr^. 


§3ii4  KEQUiliEMEiXT  OF  GKATUlTuUS   SKKVICK.  4(jy 

circumstances  or  prescribe  conditions  undci-  which  railroatl 
companies  may  be  required  to  furnish  transportation  to  ship- 
pers of  live  stock  or  other  merchandise  over  their  lines.  How- 
ever, those  circumstances  or  conditions  if  declared  or  pre- 
scribed must  exist  in  the  form  of  considerations^or  e(iuivah'iits 
for  the  transportation  furnished.  It  may  be  that  railroad 
companies  can  be  compelled  to  carry  patrons  of  their  lines  for 
some  other  consideration  than  cash  fares.  To  illustrate,  but 
only  to  illustrate,  not  to  decide,  it  may  be  that  a  lej^'islative 
enactment  which  imposed  upon  shippers  of  live  stock  the  ob- 
ligation to  care  for  their  stock  en  route,  and  by  that  extent 
to  relieve  the  trainmen  of  the  burden  of  its  care,  and  which 
required  the  company  to  transport  the  shipper  free,  as  an 
equivalent  for  his  relief  of  the  train  employees  in  the  way 
stated,  would  be  constitutionally  valid.  *  *  *  g^^^  ^i^^^. 
enactment  in  question  does  not  provide  for  the  equivalent  of 
labor  performed  for  transportation  furnished."^ 

This  case  thus  seems  to  hold  that  no  service  can  be  re- 
quired but  for  an  equivalent.  Where  incidental  services,  how- 
ever, are  absolutely  or  practically  necessary,  their  inclusion 
in  a  legislative  regulation  of  charges  is  not  open  to  the  ob- 
jection of  inequality.  So  it  was  held  in  Budd  v.  New  York^ 
that  a  statute  regulating  grain  elevator  charges  might  contain 
a  provision  to  the  effect  that  nothing  beyond  the  actual  cost 
should  be  charged  for  the  service  of  trimming  and  shovelling 
the  grain  to  the  leg  of  the  elevator,  since  the  purpose  of 
the  act  might  be  easily  evaded  if  separate  charges  could  be 
made  for  incidental  services.  It  may  be  noted  that  the  dis- 
sentin*g  opinion  dwells  especially  upon  this  feature  of  the  act 
which  is  said  to  compel  service  without  compensation.  So  it 
appears  from  the  decision  in  Brass  v.  North  Dakota"  tliat  the 
owner  of  the  warehouse  had  under  the  statute  to  insure  the 
grain  at  his  own  cost.  In  all  these  cases  the  service  is  prac- 
tically the  same  for  all,  and  it  cannot  be  said  that  une(|ual 
services  are  exacted  at  the  same  rate.^"  It  is  otherwise  where 
railroad  companies  are  required  to  carry  baggage  free  or  to 

T  Atchison,  T.  &  St.  Fe  K.  E.  Co.  shipping:    contract    expressly    stipu- 

V.  Campbell,  61  Kan.  439,  48  L.  E.  lated  tbat  the  shipper  shoiild  accom- 

A.  251.     The  act  was  interpreted  as  pany  his  stock  and  care  for  it. 

leaving    it    open    to    the    shipper    to  •''143  U.  S.  .')17. 

accompany   his   stock    or   to   ride   in  '■'  153  I^.  S.  .391. 

another  train,  and  this  although  the  i'^  Provision     that     gas     company 


^10  BUSINESS  AFFECTED  WITH    PUBLIC  INTEKEST.       §  394 

carry  bicycles  as  baggage.''  If  the  legal  rate  111  such  a  case 
is  fair  to  the  railroad  company,  it  is  apt  to  be  so  at  the  ex- 
pense of  the  passengers  who  carry  little  or  no  baggage.  So 
there  appears  to  be  inequality,  if  a  street  railroad  company 
is  required  to  carry  passengers  any  distance  within  a  city  at 
the  uniform  rate  of  five  cents.  It  has  been  shown  for  large 
cities  that  if  every  passenger  rode  the  longest  distance,  the 
fare  would  not  cover  the  cost  of  carrying.  But  the  voluntary 
adoption  of  units  of  charges  ignoring  slight  differences  in  re- 
liance upon  the  equalisation  of  averages  shows  that  upon  a 
reasonable  view  of  the  business  as  a  whole  the  prohibition  of 
certain  discriminations  which  might  be  technically  justifiable, 
may  be  just  and  maintainable  wnthout  a  violation  of  the  prin- 
ciple of  equality.  The  usages  of  business  must  determine 
whether  the  fair  measure  of  equalisation  has  been  over- 
stepped.'2 


shall  not  charge  for  meter  upheld, 
Buffalo  V.  Buffalo  Gas  Co.,  80  N. 
Y.  Suppl.  1093. 

11  See   the   Session   laws   of   many 
states  of  1896  and  1897. 

12  As  to  requiring  transfer  of  car 
load  lots  from  one  road  to  another 
without  expense  to  the  shipper,  see 
Burlington,  &c.,  R.  Co.  v.  Dcy, 
82  la.  312,  48  X.  W.  98,  31  Am.  8t. 
Rep.  477,  12  L.  U.  A.  43(5.  The 
Supreme  Court  of  tlic  United  States 
has  intimated  that  a  rate  fixo(l 
i>y  a  commiHsion  is  not  neces- 
sarily unrc;is(iiiablp,  because  at  a 
similar  riilr  fur  all  frciglil  llir 
company  would  not  be  able  to  pay 
(iprTafing  expenses,  as  long  as  the 
existing  rates  on  other  merchandise 
earn  large  j)rofits  for  the  company. 
Minneapcdis  &  St.  T..  R.  Co.  v. 
Minncsf.ta.  IHO  U.  S.  257.  Then' 
is  nnddubtedly  inequality  in  such  a 
raflP,  but  it  constitutes  a  grievance 
of  the  class  of  shippers  paying 
iiigher  charges,  and  not  of  the 
railroad  com[>any,  and  there  is 
no  rniiHlitvlioiiiil  priiniple  rcfiuiring 
publie  service  com]>anie8  to  serve  all 


its  jiatrons  on  equal  terms.  It  is 
believed  that  a  publie  service  com- 
pany cannot  be  required  to  render 
services  (other  than  such  as  are  in- 
cidental to  other  services)  on  terms 
which  mean  a  positive  loss  to  the 
company,  not  even  though  it  may 
recoup  that  loss  on  other  services; 
but  the  legislature  may  take  the 
fact  into  consideration  that  in  view 
of  the  inevitable  operating  expenses 
of  tiie  business  taken  as  a  whole 
certain  services  can  be  r/^n<lered 
without  a  loss,  which  could  not  be 
rendered  without  a  loss  if  operat- 
ing facilities  iiad  to  lie  iinixidcd  to 
meet  them. 

While  the  ignoring  of  slight  dif- 
ferences is  not  fatal  to  the  validity 
of  iT^iihilion  of  ciiarges,  it  has  been 
pointed  out  that  tiie  inability  or 
failure  of  the  public  authorities  to 
do  pistico  to  the  finer  shades  of  dif- 
ference in  the  value  of  services  is 
one  of  llie  serious  (d)jeclions  to 
state  regulated  charges.  They  iiave 
tlie  tendency  to  deteriorate  the 
grade  of  services  and  goods. 
luiHcher    F'lditical    Economy    III,    p. 


§395  PUBLIC   CONVENIENCE.  411 

REQUIREMENT  OF  PARTICULAR  ARRANGEMENTS  IN  THE 
INTEREST   OF  PUBLIC  CONVENIENCE.     §§  :jyrj-398.>:' 

§  395.  Particular  arrang-ements  not  within  the  common 
law  duty  of  equal  service.  — As  has  been  seeu  before,' '  lli<-  etMu- 
mon  carrier  or  inniveeper  at  common  law  was  under  oblitja- 
tion  to  render  services  only  to  the  extent  of  his  available  ac- 
commodation, which  was  left  to  his  discretion.  The  modern 
public  service  company  enjoying  special  powers  and  privileges 
acts  under  a  franchise  which  determines  the  scope  of  its  serv- 
ice, and  thereby  the  extent  and  measure  of  its  duty,  beyond 
which  it  need  not  go,  so  that  e.  g.  a  railroad  company  cannot 
be  compelled  to  construct  a  line  between  different  points  than 
those  contemplated  by  its  charter.^ ^  Within  the  scope  defined 
by  the  charter  the  business  must  be  provided  with  facilities 
adequate  to  render  the  service  offered  to  the  public  and  which 
may  be  expected  to  be  called  for  under  ordinary  conditions, 
though  not  sufficient  to  cope  with  an  unusual  pressure  or 
emergency  •,^*^  but  the  determination  of  the  plan  and  manner  of 
equipment,  the  location  of  depots,  the  arrangement  of  time 
schedules,  etc.,  so  as  to  adjust  the  service  to  a  reasonable  pub- 
lic demand  without  sacrificing  the  right  to  profits,  is  a  prob- 
lem of  such  difficulty  that  it  is  primarily  and  sometimes  ab- 
solutely committed  to  the  judgment  of  the  board  of  directors. 
Thus  while  in  a  few  cases  courts  have  held  that  the  establish- 
ment of  stations  and  the  operation  of  trains  may  be  compelled 
by  mandamus,!"  ^s  a  rule  this  remedy  is  withheld  on  the 
ground  that  the  charter  confers  an  authority  without  im- 
posing a  duty  or  that  in  the  nature  of  things  such  a  duty 
requires  the  exercise  of  discretion  and  is  not  merely  minis- 
terial.i-^  The  Supreme  Court  of  the  United  States  has  inti- 
mated that  the  abuse  of  such  discretion  is  more  appropriately 
dealt  with  by  the  legislature  or  by  administrative  boartls,  than 

801,      states      that      he      was      as-  i<i  Dawson   v.  Chicago  &   AKon   K. 

sured  by  a   farmer  living  near  two  R.  Co.,  79  Mo.  296. 

cities,    one    of   which    regulated    the  "  People   v.   Chicago   &   Alton    R. 

price   of   meat   while   the   other    .lid  R.  Co.,  130  III.   175,  22  N.  E.  857; 

not,  that  the  best  beef  was  iuvari-  People  ex  rel.  Cantrell  v.  St.  Louis. 

ably  reserved   for  the  latter  city.  &c.,   R.   Co.,    176    HI.   r)12;    State   v. 

13  See,  also,  §  699.  Hartford  &  N.  H.  R.  Co.,  29  Conn. 

i*See  §  387,  supra.  r)38;   Concord  &  Montreal  R^  R.  Co. 

isZabriskie    v.    Hackensack,    &c.,  v.  Boston  &  M.  R.  R.  <'o..  67  N.  IT. 

R.   Co..    18   N.   J.   Eq.    178,   90   Am.  464. 

Dec.  617.  18  Com.    v.    Fitchburg    R.    Co.,    12 


412  BUSINESS  AFFECTED  WITH    PUBLIC  INTEREST.       §  395 


by  the  ordinary  judicial  tribunals.^ ^  The  power  of  the  legis- 
lature to  require  the  maintenance  of  a  station,  or  to  forbid 
its  discontinuance  without  the  consent  of  designated  authori- 
ties,-*^ or  to  require  the  stopping  of  trains  at  county  seats,-^ 
is  recognised. 

The  obligation  of  the  public  service  companj-  to  provide 
adequate  facilities,  moreover,  relates  only  to  the  ordinary  and 
uniform  services  for  which  the  business  is  prepared  and  which 
can  be  rendered  on  terms  fixed  in  advance  by  general  rule 
under  proper  classification.  It  does  not  cover  services  or 
the  furnishing  of  facilities  which  according  to  their  nature 
must  be  matter  of  special  bargaining,  and  which  could  not 
be  rendered  indiscriminately  to  all  members  of  the  public  alike. 
The  fact  that  special  services  or  facilities  are  provided  for 
one  party,  does  not  give  another  party  a  right  to  the  like 
accommodation.  In  accordance  with  this  view  it  has  been 
held  that  railroad  or  steamboat  companies  are  not  under  a 
common  law  obligation  to  give  facilities  requiring  special  con- 
tractual arrangements  to  all  express  companies  alike.-^  The 
same  principle  applies  to  the  accommodation  of  sleeping  car 


Gray  ISO;  People  v.  New  York,  L. 
E.  &  W.  R,  Co.,  104  N.  Y,  58;  State 
V.  Kansas  Central  R,  Co.,  47  Kan. 
497;  Ohio  &  ]\I.  R.  Co.  v.  People, 
120  111.  200;  :Mobile  &  Ohio  R.  Co. 
V.    People,    132    111.    .559,    24    N.    E. 


cific  duties  regarding  operation  auti 
traffic  facilities,  see  Stimson  Am. 
Stat.  Law  II,  8802-8803. 

20  Commonwealth  v.  Eastern  R. 
Co.,  103  Mass.  54;  Railroad  Com- 
missioners V.   Portland,   &c.,   R.   Co., 


643;  Chicago  &  A.  R.  Co.  v.  People,  63   Me.   269;    State  v.   W.   St.   L.   & 

152  III.   230;    Northern   Pac.   R.   Co.  T.  R.  R.  Co.,  83  Mo.  144;   State  v. 

V.  Washington,  142  U.  S.  492.  Chicago,   M.  &  St.  P.  R.  Co.,  12  S, 

19  Northern  Pac.  R.  Co.  v.  Wash-  D.  305,  47  L.  R.  A.  569. 
ington,      142      U.      S.      492.         For  -'  This    requirement    must    not    in- 

the    history    of    tin;     legislation     of  terfere  unduly  with   the  freedom   of 

New  York  on  the  subject  see  People  interstate    commerce.       See     Illinois 

ex   rel.    Linton    v.   Brooklyn    Heights  ('ent.    R.    Co.    v.    1  Hindis,    163    U.    S. 

R.    Co.,    172    N.    Y.    90,    64     X.     K.  1-12,   and    C.   C.    C.   &   St.   L.   R.   Co. 

7H«.     The      English      Railway      ;iii<l  v.    Illinois,    177    U.    S,    514,    holding 


Canal  Traffic  Act  1854  (17  an-l  is 
Virf.  c.  :\\  §  u')  provides  that  the 
'•(iiiipiiiiicH  shall  ;icr(irdiiig  (o  their 
|)owerH  ufTord  all  reasonable  faiili- 
ticB;  the  enforcement  of  this  pro- 
visinn  whh  HnbHer|uenfly  entrusted  to 
tlif  Railway  Commissionors:  South 
IliiHlcrn  ]{y.  Cn.  v.  Kaihvav  Commrs., 


the  re(|uirement  to  be  void;  and 
Lake  Shore  &  M.  S.  R.  R.  Co.  v. 
Ohio,  173  IT.  S.  285,  sustaining  it, 
accoriling  to  its  difTerent  operation 
in  difTerent  cases. 

■■''- Kx press  Cases,  117  U.  S.  1; 
Barney  v.  Oystor  P.ay,  etc.,  Co.,  (\7 
N.    Y.    301.      As    to    duty    to    tlcliver 


•  >  (}.  I'..  Div.  586,  1881.    As  to  Ameri-      goorls  at  warehonses,  see  Chicago  & 
I  an    li-giHlali.Mi,    which    has   few   spe-      N.   \V.    |{.  Co.   v.   People,  56  Til.  365. 


j;  ;](j(;  SPKtIAL  ACCOMMODATION'   Ol;    m,i;  \  li  i-,.^.  41;^ 

companies  which  likewise  must  be  matter  of  sp<'(;ial  con- 
tract ;23  and  to  arrangements  between  telegraph  ami  li-ji-phone 
companies  regarding  transmission  of  messages.-' 

In  the  Express  Cases  the  Supreme  Court  points  out  that 
''as  the  things  carried  are  to  be  kept  in  the  personal  custody 
of  the  messenger  or  other  employee  of  the  express  company, 
it  is  important  that  a  certain  amount  of  car  space  should  be 
specially  set  apart  for  the  business,  and  that  this  should,  as 
far  as  practicable,  be  put  in  the  exclusive  possession  of  the 
expressman  in  charge.  As  the  business  to  be  done  is  "ex- 
press," it  implies  access  to  the  train  for  loading  at  the  latest, 
and  for  unloading  at  the  earliest  convenient  moment.  .Ml 
this  is  entirely  inconsistent  with  the  idea  of  an  express  ])usiness 
on  passenger  trains  free  to  all  express  carriers."  While  in 
similar  eases  some  state  courts  have  arrived  at  different  con- 
clusions, it  did  not  appear  in  these  cases  that  the  express  com- 
panies which  had  been  refused  accommodation,  had  claimed 
special  privileges  of  the  character  indicated.^^ 

§  396.  Cab  and  other  privileges  granted  by  railroad  com- 
panies.— It  is  a  somewhat  different  (piestion  whether  railroad 
companies  are  iTnder  obligation  to  aff'ord  in  their  depot  grounds 
equal  access  and  accommodation  to  all  owners  of  cabs  or 
omnibuses  desiring  to  solicit  the  patronage  of  arriving  i)as- 
sengers ;  for  in  this  case  no  special  contracts  are  required,  but 
mere  sufferance  on  the  part  of  the  railroad  company.  The 
courts  are  divided  on  this  question,  the  validity  of  the  grant  of 
an  exclusive  privilege  for  that  purpose  being  affirmed  in  New 
York,26  Massachusetts,-'  Rhode  Island,2s  Connecticut,-" 
Georgia,3f'    and   Minnesota  ;=^^    and   denied   in   Alabama, ■''-    In- 

23  Pullman  Pal.  Car  Co.  v.  Mis-  -'•  Brown  v.  New  York  Cent.  Ac 
souri  Pac.  E.  Co.,  115  U.  S.  587.  H.  E.  E.  Co.,  75  Hun  355. 

24  People  V.  Western  Union  Tel.  -~  Old  Colony  E.  Co.  v.  Tripp, 
Co.,  166  111.  15,  46  N.  E.  731;  Peo-  147  Mass.  35;  Boston  &  A.  U.  Co. 
pie  ex  rel.  Postal  Tel.  Co.  v.  Hudson  v.  Brown.  177  :Mass.  65,  52  L.  E.  \. 
Eiver  Telephone  Co.,  19  Abb.  N.  C.  418. 

466.  28Griswoid  v.  Webb.   Iti  U.   I.  t;4!>. 

25Sanford   v.    Catawassa,    etc.,   E.  29  New  York,  N,  H.  &  II.   E.   Co. 

Co.,   24  Pa.   St.   378;    New  England  v.  Scovill,  71  Conn.  136. 
Express  Co.  v.  IMaine  C.  E.  E.  Co..  "'Kates  v.  Atlanta  Baggage  Cal. 

57  Me.   188;    McDuffee  v.  Portland.  Co.,  107  Ga.  636,  46  L.  E.  A.  431. 
&c.,  E.  E.  Co.,  52  N.  H.  430 ;  Pick-         •''i  Godbout     v.     St.     Paul     Union 

ford   V.   Grand    Junction    E.    Co.,    10  Depot   E.   Co.,   79   Minn.    1S8,   47   L 

M.  &  W.  399.  E.  A.  532. 


414  BUSINESS  AFFECTED  WITH    PUBLIC   INTEREST.       §  397 

diana,^^  Kentuckj',^"'  Micbigau,^^  Missouri,-"^  and  Mon- 
tana.^' The  argument  against  the  validity  of  the  privilege  is 
that,  since  depot  grounds  may  be  acquired  by  eminent  domain, 
and  are,  in  any  event,  an  essential  appurtenance  to  the  rail- 
road business,  they  are,  like  the  latter,  affected  with  a  public 
interest,  and  that  therefore  their  use  may  not  be  restricted  by 
a  monopoly.  On  the  other  hand,  it  is  argued  that  limitations 
of  space,  and  the  requirement  of  orderly  and  efficient  service, 
demand  some  restriction  and  discrimination,  and  that  llio  rail- 
road company  performs  its  duty  to  the  public,  if  it  provitles 
for  their  accommodation  by  reasonable  regulations.  It  is 
plain  that  in  some  matters  the  grant  of  exclusive  privileges  is 
inevitable,  so  in  the  grant  of  restaurant  or  news-stand  privi- 
leges.■''^ 

§  397.  Legislative  requirements."'''  — But  the  denial  of  a 
conniion  law  obligation  is  not  eciuivalent  to  the  assertion  of  a 
constitutional  innnunity.  It  is  within  the  power  of  the  legis- 
lature to  require  that  adequate  accommodation  be  furnished  by 
a  business  affected  with  a  public  interest  for  the  satisfaction  of 
tlic  public  needs,  and  that,  if  necessary,  special  arrangements 
be  entered  into  with  that  purpose  in  view.  "The  regulation 
nf  iiuitters  of  this  kind  is  legislative  in  its  character,  not  ju- 
dicial. To  what  extent  it  nmst  come,  if  it  come  at  all,  from 
Congress,  and  to  what  extent  it  may  come  from  the  states, 
are  (juestions  we  do  not  undertake  to  decide;  l)ut  that  it  must 
come,  when  it  does  come,  from  the  source  of  legislative  power, 
we  do  not  (loubl.  Tlic  Icgislatiii-i'  may  impost^  a  duty,  and 
when  iiuj)ose(l,  it  will,  if  necessary,  he  enforced  l)y  the  courts; 
but.  unless  ;i  du1\-  li;is  been  crcjilfil  rilln'i-  by  usage,  oi"  by  con- 
tract, <u'  l)y  statute,  the  coui'ts  cnnnot  be  called  ui)on  to  give 
it  effect."'"     i1   fnllows  ri-oni  the  reeogiution  of  the  legislative 

powc)"  lliiit    it    ni;iy    I xercised    by    i-eipiii-ing   that   if  specijil 

I'acilitii's  ;ife  ;ilVorded   jo  one   pni'tv   tliey  sli;dl   also  l)e  ;ifToi-dt>d 

•'- UiiidHcy    V.    Anniston,     \"\    AIij.  ■■'•  < 'ijivciis     v.     Hodfrcrs,     101     Mo. 

257,  L'7  L.  H.  A.    130.  L'I7. 

•■"«  rii<li!in;i|inliH     Union     1{.     I{.    (Jo.  '■'■'•  .Moiiliin;i    Uninn    I\'.  Co.  v.  Tj.'ititj- 

V.    iJolin,    ir>3    ln<l.    in,    ■1.'-,    U.    R.    A.  lois,  <)  Monl.    (I'.i. 

4L'7.  •''"  Fliiltf'r  V.  (!<'iir;;i:i   M.  &   l'.:iiiKiii(r 

•t*  Mrfonnill     \.     I'.-liy,,,    <i'j     Ky.  Co.,   HI    Ca.    JCl. 

■jr,,'',.  ••■"  Sec,  alHo,   §§   r>\s,  rM). 

■'••  K,'il(im;izno    Hni-k   Co.    v.   SooIh  '"  iOx|)rosH  Cjibch,    117  U.  S.    1. 
ma,   N4    Mi«li.    I'll. 


^1597  KEQUIKEMEXT    OF    (  UX.XHCTI  .\( ;    HUSlMvSS.  4^5 

to  others,  subject  to  the  condition  that  the  duplication  ul'  th.- 
service  impose  no  unreasonabh'   burden    ui)on    the    business. 

This  power  is  exercised  especially  by  requiring  railroads  to 
do  connecting  business  with  each  other,  or  to  allow  connections 
between  tracks.^  1  Where  one  common  carrier  is  forced  to  eiitn- 
into  special  relations  w\th  another  for  the  accommodation  .il" 
the  latter,  the  intended  ultimate  beneficiary  is  the  publie,  and 
the  public  benefit  alone  furnishes  the  justification  for  the  re- 
quirement. It  has  therefore  been  held  that  a  railroad  com- 
pany cannot  be  compelled  to  surrender  its  property  to  allow 
the  erection  of  a  private  elevator,  since  that  would  be  taking 
of  private  property  for  private  use.^s  The  requirement  must 
also  keep  substantially  within  the  scope  of  the  business  upon 
which  it  is  imposed.  Thus  a  railroad  company  cannot  be  com- 
pelled to  construct  a  line  between  different  points  than  those 
contemplated  by  the  charter.'*-'' 

A  somewhat  narrow  view  of  the  legislative  power  in  this  re- 
spect is  taken  in  Massachusetts.  A  statute  of  that  state  refpiired 
railroad  companies  to  issue  mileage  tickets  and  to  receive  those 
issued  by  other  companies  or  parts  of  such  tickets  in  payment 
of  their  fares,  subject  to  the  conditions  of  the  issuing  com- 
pany. The  requirement  was  held  to  be  unconstitutional  upon 
the  ground,  among  others,  that  to  compel  a  railroad  company 

41  Fitchburg  E.  Co.  v.  Grand  the  party  rendering  the  service. 
Junction  E.  Co.,  4  Allen  198;  State  Thus  in  Minnesota  a  statute  was 
V.  Noyes,  47  Me.  189,  denying  power  passed  prohibiting  any  one  from 
as  inconsistent  with  charter  rights,  carrying  on  the  warehousing  busi- 
criticised  in  Boston  &  M.  E.  E.  Co.  ness  who  was  not  specially  licensed 
V.  County  Conimrs.,  79  i\Ie.  386.  therefor,  and  requiring  transporta- 
The  obligation  to  allow  physical  tion  companies  to  deliver  all  un- 
connection  does  not  involve  the  duty  claimed  goods  after  twenty  day.s  to 
to  enter  into  arrangements  for  con-  a  licensed  warehouseman.  This  was 
necting  business.  Atchison,  T.  &  St.  held  to  be  an  unconstitutional  re- 
Fe  E.  Co.  V.  Denver  &  N.  O.  Co.,  110  quirement,  since  it  conferreil  ap- 
U.  S.  667.  Principle  of  such  require-  parcntly  no  benefit  upon  any  one 
nients  sustained  in  Wisconsin,  etc.,  but  the  licensed  warehouseman 
K.  Co.  V.  Jacobson,  179  U.  S.  287.  whose  business  might  be  thereby  in- 

42  Missouri  Pae.  E.  Co.  v.  Ne-  cheased.  State  v.  Chicago,  M.  &  St. 
braska,  164  U.  S.  403.  Nor  can  the  P.  E.  Co.,  68  Minn.  3S1,  38  L.  B.  A. 
power  to  require  services  be  used  672.  See,  also,  Garton  v.  B.  &  E. 
for  the  purpose  of  forcing  upon  the  E.  Co.,  6  C.  B.  (N.  S.),  639,  1859. 
public  accommodations  which  they  43  Zabriskie  v.  TIackensack,  &i'., 
do  not  want,  and  for  which  they  E.  Co.,  18  N.  J.  Eq.  17S,  00  Am.  IVc. 
would  have  to  pay,  to  the  profit  of  617. 


410  liU.-^lNE^b  AI-TEl'TEL»   with    public    interest.       ^  398 

to  carry  passengers  on  the  credit  of  another  company,  receiv- 
ing in  return  merely  a  cause  of  action  against  the  other  com- 
pany without  providing  for  redemption  funds  or  giving  liens 
on  tangible  property,  was  taking  property  for  jjublic  use 
without  making  provision  for  compensation.^-'  Two  of  the 
justices  dissented  upon  the  ground  that  the  chance  of  loss  was 
infinitesimal,  and  that  any  risk  arising  from  insolvency  or 
abuse  in  the  issue  of  mileage  tickets  could  be  provided  against 
by  the  power  given  to  the  railroad  commissioners  to  exempt  or 
exclude  railroads  from  the  operation  of  the  act.  The  dissent- 
ing opinion  makes  a  strong  plea  for  the  doctrine  that  the  con- 
stitutionality of  a  statute  should  be  judged  by  actual  conditions 
and  practically  certain  results,  and  not  l)y  remote  theoretical 
or  speculative  possibilities. 

^  398.  Public  convenience  not  ordinarily  a  ground  of  police 
control.  — The  ^Supreme  Court  of  the  United  States,  in  dis- 
cussing the  nature  of  the  power  to  impose  requirements  of  the 
class  here  discussed^"'  recognises  distinctly  that  it  has  no  ref- 
erence to  health,  morals  or  safety,  but  simply  to  public  con- 
venience ;  but  while  questioning  the  propriety  of  ranging  it 
under  the  police  power,  it  seems  inclined  to  regard  it  as  a 
general  governmental  object  to  provide  for  the  public  con- 
venience by  compulsory  measures.  The  nature  of  the  require- 
ment seems  to  iii.iik'  it  clearly  as  an  exercise  of  the  police  power; 
but  it  would  be  unwarranted  to  conclude  that  this  power  can 
always  be  set  in  motion,  simply  to  subserve  the  convenience 
of  Ihe  public.  It  Avonld  be  a  novel  doctrine  to  assert  that  the 
state  could  pi'escfihr  what  kinds  of  goods  a  dry  goods  mer- 
chant shall  keep,  how  many  salesmen  lie  shall  enijiloy,  how 
ihe  goods  shall  be  exhihiled  1o  hiiyers,  or  how  long  his  store 
shall  lie  ki-ji1  open.  TIm'  |iiil)lic  iiiletvst  ol"  cotivciiicnce  is  not 
as  urgent  as  that  of  lirallli  or  safety,  and  hence  does  not  Jiistiry 
similar  inti'T-rci-rticr  willi  pfivale  rights.  Whei-c  the  |iiil>lic 
determines  standard  and  qnality  of  service,  it  assumes  a  func- 
tion which  })rope?'ly  falls  within  the  dis<Tetioii  of  the  nianau'er 
(»f  a  business;  and  such  power,  it  srcms.  can  he  claimed  only 
in  return  for  special  privileges,  or  lo  check"  the  |i  iidencies  in- 
licfi'iit  in  a  virtual  monopoly,  a^rainst  which  a  remedy  eaiuiot 
he   otherwise    |>rovi(led.      This    is    the    theory    on    wliicji    ai-tiial 

«»Atti.rnoy  ficiuT.-iI   v.  ()|.|   ('(.l.iny  "••  l<.il<c   Slmrc   &    .M.   H.    H.    U.   Cn. 

R.  Co.,  IfiO  MiiHH.  »)L'.  V.  ()lii(..   17.T  TT.  S.  USr),  297. 


§399  REQUIREMENTS  FOU    FIXAA'CIAL   SKCURITV.  4^7 

legislation  proceeds;  for  it  will  be  found  thai  roquin'iiicnts 
for  convenience  are  confined  jnainly  to  railroad  compaiiies, 
with  now  and  then  a  similar  provision  affecting  a  tch-graph, 
telephone,  gas,  electric,  or  water  conipany.-««  It  may  thus 
be  concluded  that  the  police  power  for  the  public  con- 
venience may  be  exercised  only  with  regard  to  a  business  af- 
fected with  a  public  interest,  and  that  for  this  purpose  again 
a  business  affected  with  a  public  interest  is  one  which  enjoys 
either  special  privileges  or  a  virtual  monopoly. 

REQUIREMENTS   AND  RESTRICTIONS    IN    THE    INTEREST    OF 
FINANCIAL  SECURITY.     §§  399-401. 

§  399.  Banking  and  insurance.— Banking  and  insurance  are 
treated  very  generally  by  the  statutes  of  the  American  states 
as  affected  with  a  public  interest,  and  are  subjected  to  elabo- 
rate regulative  and  restrictive  legislation  of  a  kind  not  nor- 
mally applied  to  other  classes  of  business. 

The  modern  legislation  regarding  banks  is  of  a  different 
character  from  the  older  English  legislation  affecting  bankers : 
the  latter  regulated  and  restrained  the  dealing  in  coins,  and 
bills  of  exchange,  and  the  loaning  of  money  on  interest.  At 
present,  with  the  exception  of  the  interest  legislation,  these 
branches  of  business  are  left  free.  The  issue  of  bills  of  credit 
to  circulate  as  money,  which  has  attained  great  importance 
only  since  the  eighteenth  century,  was  always  regarded  as  a 
proper  subject  of  restrictive  regulation.  The  Revised  Laws  of 
New  York  of  1813,  and  the  Revised  Statutes  of  that  state  of 
1828,^"  required  special  authority  of  law  for  the  issue  of  notes 
or  other  evidences  of  debt  to  be  loaned  or  put  in  circulation 
as  money;  and  prohibited  the  keeping  of  any  office  for  the 
purpose  of  receiving  deposits,  or  discounting  notes  or  l)ills 
without  such  authority,  which  was  explained  by  later  legis- 
lation as  a  prohibition  of  the  keeping  of  offices  designated  by 
the  corporate  name  of  a  "Bank."-*'^  The  General  Banking 
Law  of  1838,  enacted  after  the  crisis  of  1837,  and  which  may 
be  regarded  as  the  beginning  of  systematic  legislation  on  banks 

46  So,   requiring   a  telephone  com-  ■4^1  Rev.  Stat.   p.   7V2. 

pany  to  provide  messengers  in  con-  -is  See    Gen.    Laws    ISOl!,    cli.    .19. 

nection  -with  its  toll  service.    Central     §  92. 
Union  Teleph.  Co.  v.  Swoveland,   14 
Ind.  App.  341,  42  N.  E.  1035. 

27 


418  BrSINESS  AFFECTED  TVTTH    PT'BLTC  TNTEEEST.       §  399 

in  America,  added  to  the  older  restrietions  tlie  requirement  of 
a  minimum  capital,  and  of  periodical  reports  and  published 
statements  regarding-  the  linancial  condition  of  the  bank.  The 
present  banking  legislation,  enacted  by  the  states  for  state 
banks  of  deposit,  and  by  Congress  for  national  banks  of  de- 
posit and  issue,  places  these  banks  under  systematic  official 
supervision,  requires  a  permit  for  organisation,  which  is 
granted  only  after  ascertaining  that  all  preliminary  condi- 
tions regarding  payment  of  capital,  etc.,  have  been  complied 
with,  limits  the  amounts  of  individual  loans  that  may  be  made, 
and  provides  for  periodical  official  examination  of  the  bank. 
The  laws  of  some  states  contain  additional  restrictive  regula- 
tions regarding  trust  companies  and  savings  banks;  so  it  is 
provided  in  Xew  York  that  the  business  of  a  l)ank  and  of  a 
savings  bank  nmst  not  be  carried  on  in  the  same  or  in  com- 
nnuiicating  rooms,  and  directions  are  given  respecting  th(> 
kiii'Is  of  liusiness  a  savings  bank  may  do.  and  the  securities  in 
wliicli  it  may  invest  its  funds.^'^ 

The  regulation  of  the  business  of  insurance  is  of  more  recent 
date  than  that  of  banks.  The  Revised  Statutes  of  Xew  York  of 
1828  contain  only  a  few  provisions  in  restraint  of  foreign  in- 
surance companies.  There  is,  however,  a  very  large  amount 
of  spt'cial  legislation  for  the  organisation  of  insui-auce  com- 
panies, and  llii'ou-li  this  system  of  special  acts  the  legislature 
had  it  ill  its  i)ower  to  impose  such  conditions  upon  the  business 
as  it  chose.  TIp'  first  general  legislation  for  the  organisation 
ul"  iiiarinf.  fire,  and  lift^  insurance  companies  was  enacted  in 
New  York  in  lS4:i.  Al  pi-csent  most  states  have  elal)orate 
statutes  n-LTuhiting  the  various  l<inds  of  iiisui-ance,  marine, 
lire,  lil"<',  iiilaixl  navigation  ;iiid  1  rauspdrtal  imi.  liail  and  tor- 
nado, jiccidi'iii,  litlc.  liddity.  etc..  with  sprcial  provisions  for 
I'lMtiTiiid    Ix'iH'licijirx'   socici  ifs. 

'I'lic  I'csl  i-id  ions  iui|)os(M|  upon  llic  Itnsincss  of  iusui'ance 
res«'nil»l<'  in  iinpoi-t;in1  r('s|>fcls  lliosr  imposed  on  hanking. 
'I'liere  must  l)e  a  pennil  to  oi-giinisi-  and  a  uiiniinum  amount 
of  c'lpital;  tliei'e  is  lull  provision  Tor  repor-ts,  |>ul)lishe(|  state- 
ments. ;iiid  examinations.  Tlie  ;imouiil  id'  indi\idual  I'isks 
in  |)ropoi-tion  to  tlie  ejipital  is  limited-,  the  m;iiinei'  cd"  invest- 
ment of  e;ipital  is  prescribed;  capil;il  imp;iired  must  he  made 
g<»od,   or   it"   losses  exceed    ;i    certain    amount,   no   new    Inisiness 

41'  New     V..rk     P.:irikini:     I,:nv     Cell,    .'i?   of  deii'l    L:iws)    §§   1'.'"),    Ilfi,   122, 


^  4U0  BANKLXf!    AND    IXSURAN'CE.  41«j 

may  be  done;  some  kinds  of  companies  are  re(inir<'(l  lo  ki-cji 
a  reserve  or  emergency  fund;  and  foreign  insurance  companies 
must  generally  deposit  securities;  it  is  provided  inidci  what 
conditions  dividends  may  be  declared;  and  with  regard  to  Hr»* 
insurance,  a  standard  form  of  insurance  is  sometimes  pre- 
scribed, ete.i 

$400.  Grounds  of  control.— When  we  examine  the  nature 
of  the  restrictions  on  the  ))usiness  of  banking  and  insurance, 
we  find  that  they  nearly  all  aim  at  the  same  object:  the  pro- 
tection of  depositors  and  insured  from  losses  resulting  from 
insolvency  of  the  bank  or  insurance  company.  This  loss  is 
to  be  averted  by  insisting  upon  some  guaranty  of  financial 
stability.  Provisions  of  this  character  are  not  absolutely  con- 
fined to  banking  and  insurance ;  in  some  states  railroad  or 
other  public  service  corporations  nmy  not  issue  securities 
without  complying  with  prescribed  conditions,  or  without  the 
consent  of  designated  authorities;-  and  the  power  of  corpora- 
tions to  borrow  may  be  generally  limited. -"^  But  in  the  case  of 
banking  and  insurance  they  are  not  necessarily  confined  to 
corporations,  and  ])y  far  exceed  the  financial  regulations  im- 
posed upon  any  other  kind  of  business.  While  all  the  pro- 
visions furnish  protection  against  fraud,  they  do  not  pretend 
to  be  limited  to  guarding  against  that  danger,  but  plainly 
seek  to  prevent  mere  improvidence  or  inadequacy  of  re- 
sources. 

The  justification  for  this  must  be  found  in  the  peculiar  na- 
ture of  the  business  regulated;  both  banks  and  in.suranee  com- 
panies deal  in  their  own  credit,  while  they  receive  cash;  and, 
in  addition,  banks  and  life  insurance  companies  are  the  de- 
l)Ositaries  of  a  large  proportion  of  the  savings  of  the  people. 
so  that  the  management  of  each  institution  affects  a  consid- 
erable part  of  the  public.  These  conditions  create  a  special 
public  danger,  requiring  a  more  incisive  exercise  of  the  police 
power  than  is  called  for  in  an  ordinary  business.  These  con- 
siderations do  not  explain  some  provisions  regarding  fire  in- 
surance that  have  nothing  to  do  with  the  solvency  of  the  com- 
pany; as  w^here  a  standard  form  of  policy  is  jirescribed.  or 

1  New   York   General   Laws,    1S92,  -  Massachusetts     Rt>v.     Laws.     .-h. 

ch.  38,   §   9,   12,   16,   24,  39,  41,   120,      109,  §§  24,  25,  26. 
205.  •'5  New     York     Stock     Corporation 

Law,  §  2. 


420  BUSINESS  AFFECTED  WITH   PUBLIC  INTEREST.      §  401 

certain  stipulations  in  a  policy  are  declared  void.  But  the 
contract  of  insurance,  regarded  as  an  individual  transaction, 
is  of  the  nature  of  a  wagering  contract ;  it  becomes  a  legitimate 
business  only,  where  it  is  undertaken  on  a  large  scale  by  or- 
ganised capital,  or  by  organised  associations;  then,  however, 
the  conditions  of  the  contract  are  virtually  imposed  by  the 
insurer,  and  it  is  illusory  to  speak  of  a  liberty  of  contract. 
Reasonable  regulations  for  the  purpose  of  producing  equitable 
rights  and  obligations  between  the  parties  have  therefore  been 
upheld  l)y  the  courts.^ 

^  401.  Restriction  of  right  to  carry  on  business.— Banking 
and  insurance  being  peculiarly  affected  with  a  public  inter- 
est, it  follows  that  the  right  to  carry  on  either  business  may 
be  made  to  depend  upon  the  compliance  with  certain  condi- 
tions; and  a  license  may  be  required  as  evidence  of  compli- 
ance. In  New  York,  in  the  case  of  savings  banks  and  trust 
companies,  the  authorisation  is  only  given  upon  ascertaining 
that  the  general  fitness  of  the  organisers  for  the  discharge  of 
the  duties  appertaining  to  the  trust  is  such  as  to  command  the 
confidence  of  the  conmniiiity.  and  that  the  public  convenience 
and  advantage  will  be  promoted  by  such  establishment.^ 
This  requirement  has  not  yet  been  passed  upon  by  the  courts, 
but  an  analogous  jirovision  making  the  construction  of  a  rail- 
rf)a(l  dependent  upon  an  administrative  determination  that 
public  convenience  and  necessity  require  it,  has  been  upheld.'^ 
The  requirement  of  fitness  cannot  be  regarded  as  prohibitive; 
hilt  llir  jtrovision  as  to  public  convenience  would  seem  to  tend 
toward  the  monopolising  of  the  business. 

Ill  ;i  less  extreme  form,  the  latter  objection  might  be  urged 
against  statutes  which  confine  the  business  of  li;iiiking  or  in- 
surance to  corporations.  In  Pennsylvania,  such  a  restriction 
was  held  to  be  constitulional  with  regard  to  insurance."  The 
state  riiMV  iiuleed  i-equii'c  e<)i|»(»riite  organisiit ion  of  associa- 
tions of  jtiTsoiis  engaged  in  ii,  business  which  is  subject  to 
sp<'cial  control,  as  a  method  of  exercising  such  control.  But 
as   long   as   corporate   organisation    is    limited    to   associations 

«  Orient     IriHiirancp    Co.    v.    DaggH,  Bi);iril    of    TJailrnad     f'oininissioiinrs, 

172  U.  H.  r,.->7.     Sr.<-  5  714,  infra.  KiO  N.  Y.  'JO'J.  r^\   N.  K.  (197. 

6  Now  Yorlt    Baiikiny   I/aw,  §    \'K\,  "  Coiniiioiiwo.-iltli    \.    Vrooman,    164 

1153.  I'll.  :i<»6,  -H  1'.  H.  A.  250. 

•"•  Railroafl    Law,   §    5!);    People   v. 


§  401  BANK  IXC    A  M )    1  .\  SU  KA.\(JL'.  421 

of  persons,  it  is  clear  that  this  re(iuiri'mi-iil  must  liavi-  tin- 
effect  of  excluding  from  the  business  any  individual  aetin{^ 
by  himself,  and  is  to  that  extent  prohibitive.  This  fact  was 
recognised  in  two  cases  arising  under  statutes  of  North  Da- 
kota and  South  Dakota,  restricting  the  business  of  banking  t«» 
corporations.  The  Supreme  Court  of  North  Dakota  uphehl 
the  laAv,  because  private  banking  might  be  prohibited  alto- 
gether.'^ The  South  Dakota  court  ludd  that  the  statute  could 
not  prohibit  any  citizen  from  entering  upon  any  business  not 
injurious  to  the  community,  though  affected  by  a  public  in- 
terest, and  was   therefore  unconstitutional." 

New  York  regulates  this  matter  so  as  to  obviate  this  question 
by  allowing  the  organisation  of  a  bank  l)y  an  "individual 
banker,"  subject  in  all  respects  to  the  provisions  of  the  Bank- 
ing Law.^"  The  law  also  recognises  the  "private  banker," 
who  may  carry  on  his  business  without  license  and  without 
supervision,  but  Avho  is  forbidden  to  use  for  his  business  any 
artificial  or  corporate  name  or  any  words  indicating  that  liis 
business  is  a  bank.^^ 

8  State  ex  rel.  Goodsill  v.  Wood-  lo  The  original  Banking  Act  had 
mansee,  1  N.  D.  246,  11  L.  E.  A.  not  applied  to  individual  bankers 
420.  acting  alone.    Bristol   v.  Barker,   14 

9  State  V.  Scougal,  3  S.  D.  55,  15  Johns.  205. 

L.  E.  A.  477.  "  Banking  Law,  §  2,  92. 


CHAPTER    XIX. 

QUALIFIED  PROPERTY. 

§  402.  In  general.— In  the  case  of  a  business  affected  with 
a  public  interest  it  is  the  act  of  the  owner  which  by  devoting 
certain  property  to  the  public  service  creates  that  interest. 
There  are  other  cases  in  which  property  rights  are  mod- 
ified irrespective  of  the  act  of  the  owner,  by  superior 
public  rights  or  easements,  or  by  the  interdependence 
of  several  properties  upon  each  other;  These  may  be 
designated  as  cases  of  qualified  property.  The  restric- 
tions generally  exist  by  common  law,  but  the  legislature 
sometimes  defines  them  and  sometimes  adds  to  them,  and 
questions  of  the  law  of  property  then  become  mingk'd  with 
questions  of  constitutional  power. 

NAVIGABLE  WATEES  AND  RIPARIAN  RIGITTS.     §§  403-409. 

5>  403.  Title  and  easement  of  navigation.— In  the  law  of 
navigable  waters  and  their  shores  or  banks,  property  rights 
are  (lualified  by  public  easements  existing  chiefly  in  the  in- 
terest of  navigation.  The  treatment  of  this  very  important 
branch  of  the  law  of  property  does  not  fall  within  the  scope 
of  a  treatise  on  the  police  power,  and  will  be  very  briefly  dealt 
with  only  for  the  purpose  of  discussing  some  constitutional 
(juestions  that  have  arisen  regarding  the  extent  of  public  power 
over  rii)arian  rights.  The  rights  of  the  public  ai-e  fully  rei)- 
resented  by  the  federal  government  wh<»re  interests  of  inter- 
state or  foreign  commerce  are  concerned,  it  lias  Ixm-ii  lield 
that  a  reservation  in  ;i  water  grant  in  favor  of  llie  stale  enures 
1(1  thi'  lieiielit  ul'  I  lie  (Tnited  States.' 

The  title  of  the  ri]);ii-iaii  ownei-  may  extend  1o  high  of  low 
water  mark  or  to  the  thread  of  the  stream.  Title  to  high  water 
mark  is  the  rule  in  the  case  of  tidal  waters  and  the  (Jreat 
Lakes,  unless  ;iltered  hy  special  grants;  in  the  ease  ol'  non- 
tidal  navigable  livers  the  rule  varies  in  diffei-eiit  states,  and 
the-   I'ni1<'d   States  recognises  in   each   slate   the   rule   adopted 

1  Unilf.l  StiitcH  V.  Moline,  82  Fcl.   592. 

42'J 


iv  404  NAVIGABLE  WATERS.  42;} 

by  that  state,  even  for  grants  made  of  lauds  belonging  io  lln- 
public  domain. 2 

It  will  be  convenient  to  treat,  first,  of  the  land  covered  by 
water  and  of  improvements  there  constructed ;  second,  of  the 
easements  of  the  rii)arian  owner;  and  third,  of  tin-  riparian 
land. 

§  404.  The  land  covered  by  water.— The  title  to  this  may 
be  in  the  riparian  owner  under  the  common  l;iw  i-ule  regard- 
ing non-tidal  waters  as  recognised  in  a  number  of  states.  This 
title,  in  the  case  of  navigable  waters,  is  subject  to  the  public 
easement  of  navigation  which  is  co-extensive  with  the  publie 
needs.  "Whatever  the  nature  of  the  interest  of  a  riparian 
owner  in  the  submerged  lands  in  front  of  his  upland  bor- 
dering on  a  public  navigable  river,  his  title  is  not  as  full  and 
complete  as  his  title  to  fast  land  which  has  no  direct  con- 
nection with  the  navigation  of  such  water.  It  is  a  qualified 
title,  a  bare  technical  title,  not  at  his  absolute  disposal,  as 
is  his  upland,  but  to  be  held  at  all  times  subordinate  to  such 
use  of  the  submerged  lands  and  of  the  waters  flowing  over 
them  as  may  be  consistent  with,  or  demanded  by,  the  public 
right  of  navigation."-''  The  right  of  the  state  or  of  the  United 
States  to  establish  harbor  lines,  or  erect  light-houses,  is  there- 
fore probably  the  same  whether  the  title  to  the  bed  of  the 
stream  is  in  the  riparian  owner  or  in  the  state,  these  being 
in  aid  of  navigation ;  but  where  the  bed  of  the  stream  is  pri- 
vately owned,  the  owner  has  been  held  to  be  entitled  to  com- 
pensation where  bridge  piers  are  placed  upon  submerged 
lands.'*  Since  the  public  right  of  navigation  ((ualilies  the 
riparian  owner's  rights  to  a  considerable  extent,  he  is  entitled 
to  compensation  where  a  non-navigable  stream  is  made 
navigable.^ 

••iShively  v.  Bowlby,  152  U.  S.   1.  54  N.  E.  428;  Hawkins'  Point  Light 

See,  however,  Hardin  v.  Jordan,  140  House  case,  39  Fed,  Rep.  77;  Eisen- 

U,  S.  371.  bach  v.  Hatfield,  2  Wash.   236.    See 

sSeranton  v.  Wheeler,  179  U.  S.  also  Jauesville  v.  Carpenter,  77  Wis. 
141,  163.  In  Wisconsin  the  title  is  288,  46  N.  W.  128,  20  Am.  St.  Roi>. 
held  to  be  subject  to  all  kinds  of  123,  a  case  of  special  legislation  con- 
public  uses,  including  the  public  demned  as  arbitrary  and  unerpial  and 
right  to  fish.  Willow  River  Club  v.  as  a  legislative  ad.juilication  of  :i 
Wade,  100  Wis.  86,  42  L.  R.  A.  305.  nuisance. 

4Ballance  v.  Peoria,   180   111.    29,  5  Morgan  v.  King,  35  N.  Y.  451. 


424  QUALIFIED  PEOPEETY.  §  405 

§  405.  Special  grants— Commonwealth  v.  Alger.— The  title 
to  submerged  lauds  may  be  iu  the  ripariau  owuer  under  special 
grants  and  therefore  affected  by  the  power  under  which  such 
grant  was  made  and  by  its  terms.  A  colonial  ordinance  of 
Massachusetts  of  1G41  had  given  the  riparian  proprietors  on 
certain  navigable  waters  the  property  to  low  water  mark, 
provided  they  did  not  hinder  the  passage  of  boats  and  other 
vessels.  An  Act  of  the  Legislature  of  1837  established  harbor 
lines  along  the  shores  of  one  of  these  waters  beyond  which 
any  kind  of  building  was  forbidden.  This  line  was  drawn 
above  low  water  mark.  Defendants  erected  a  wharf,  part 
of  which  was,  subsequent  to  the  passage  of  the  act  of  1837, 
extended  beyond  this  line  but  remaining  above  low  water 
mark  and  without  making  any  hindrance  or  injur}'  to  naviga- 
tion. In  an  action  brought  against  them  the  constitutionality 
of  the  act  Avas  maintained  and  the  wharf  declared  to  be 
an  unlawful  erection.*^  The  court  held  that  all  grants  of 
water  hunl  are  impliedly  subject  to  restraints  for  public  use, 
and  that  wherever  private  property  is  thus  qualified  by  pub- 
lic interest,  the  legislature  may  prescribe  a  precise  i)ractical 
rule,  and  that  it  must  be  relied  upon  to  save  private  property 
rights  as  much  as  possible.  That  the  wharf  created  no  actual 
impediment  to  navigation  was  held  to  be  no  defense,  since  it 
was  impracticable  to  leave  the  decision  of  this  question  to 
each  individual  case. 

The  court  (i'c;i1('(|  the  proviso  in  llie  grant  "that  such  pro- 
prietor shall  not  by  this  lil)ci-t\-  have  power  to  stop  or  hinder 
tlir  i»assage  ol'  bojits  oi'  otlni-  vessels,  iu  oi-  tiu-ough  any  sea, 
creeks,  or  coves,  to  ollnr  men's  houses  or  lands,"  as  reserv- 
ing to  till'  |)uMic  ;ill  ri'jlits  incident  to  the  easement  ol'  naviga- 
tion, as  tiiesc  I'ights  li;i\e  lieeu  rMTcised  in  lOniilaud  under  the 
Itoyal  I'rei'ogalive.'  A  Tnll  ai-eouut  nl'  the  I'elation  between 
pi'ivate  and  public  iMglit  in  li.i  ibm-s  is  given  in  Ilnle's  Trea- 
tise de  I'ortil)Us  Maris,  hut  nutliing  is  said  alioul  the  estab- 
lishment ol"  dejinite  hai'bnr  liui's.  The  |inl)lie  right  is  said  to 
consisl  in  tbe  jtreservat  ion  of  the  li.iriior  I'rom  nuisances,  one 
form  of  nuisance  being  "the  st  rMi-jidenin!^  (d'  the  port  by 
bnildiuL'  loo  f.ir  into  the  w.'der,  when'  ships  or  v<'ssels  might 

'■■  riiniiii(»ii\V(.';illli  \,  .MgiT,  7  <'iisii.  W'pston  v.  ft:im|(snii,  s  ('nsli.  'M7 ; 
.-.3,  1H51.  P.-nkard  v.  Hydcr,   114  Mass.  440. 

■  hwlnilin^,'   tlic  iij,'lit  te  lake  fisli. 


§406  HARBOK  LINKS.  40- 

havo  formerly  ridden;  for  it  is  to  be  observed,  llial  nuisance 
or  no  nuisance  in  such  case  is  a  question  of  fact."*  As  tlic 
title  below  high  water  mark  was  usually  in  the  Kin^,  anil 
as  the  King  had  to  license  every  public  wharf,  the  cstiiblish- 
me.nt  of  a  line  below  w^hich  wharves  should  not  be  extendi  1 
would  have  met  with  no  legal  difficulty  in  England.  In  th<- 
Massachusetts  case  the  fact  that  the  title  was  in  tin-  riparian 
proprietor,  and  that  his  erection  was  admittedly  not  a  nuisiinec, 
presented  a  novel  question.  In  support  of  its  ruling,  th<' 
court  relied  partly  upon  the  easement  of  navigation,  and 
partly  upon  the  general  police  power  upon  the  operation  of 
which  the  court  enlarged  at  some  length.  As  this  was  one 
of  the  first  judicial  discussions  of  the  police  power,  the  east- 
is  generally  treated  as  one  of  the  leading  cases  upon  the  sub- 
ject, but  the  definition  of  the  police  power  {''sic  utcrr  tno  ut 
alienum,  non  laedas,^^^  etc.)  is  very  vague,  and  its  application 
to  the  case  in  hand,  if  we  leave  out  of  consideration  the  ease- 
ment of  navigation,  is  based  upon  no  intelligible  prineiple. 
The  proposition  that  property  rights  must  be  exercised  in 
subordination  to  the  public  welfare  is  a  commonplace  unless 
the  conditions  of  such  subordination  are  defined.  If  the  court 
in  this  case  found  any  justification  for  the  exercise  of  the 
police  power,  beside  the  public  right  of  navigation,  it  failecl 
to  point  out  with  clearness  such  additional   ground. 

§  406.  Establishment  of  harbor  lines— Effect  on  existing 
W^harves.— In  two  re^i)ects,  however,  the  eourt  applies  impor- 
tant principles  of  the  police  poAver.  It  recognises  in  the  first 
place  the  fact  that  police  regulations  need  not  confine  tiiem- 
selves  to  a  restraint  of  actual  evil  or  mischief,  but  may  within 
reasonable  limits  establish  definite  lines  which  in  a  certain 
sense  must  be  arbitrary,  so  as  to  leave  a  margin  of  safety  and 
cut  off  controversies  in  each  case  as  to  whether  luiisanee  or 
no  nuisance.io  But  it  does  not  yet  recognise  that  in  its  judg- 
ment as  to  what  is  reasonable  the  legislature  is  eontrollable 
by  the  courts. 

The  second  important  point  is  the  distinction  between  the 
prospective  and  retroactive  operation  of  the  regulation.  Oidy 
that  part  of  the  erection  was  condemned  which  was  made  sub- 
sequent to  the  restraining  act.     With   regard   to  a   wall   jire- 

8  Hargrave's  Law  Tracts,  p.  85.  ^"  See  §§  28,  29,  supni. 

9  As  to  this  phrase  see  9  Harvard 
Law  Review,  p.  14-17. 


42b  QUALII^IED   PROPEKTY.  §  407 

viously  built  it  was  held  that  the  aet  could  have  no  effect 
if  it  was  not  a  nuisance  in  fact.  Where  some  improvement 
has  been  constructed  beloAv  high  water  mark  hy  private  per- 
sons or  corporations  under  statutory  authority,  they  cannot  be 
deprived  of  it  for  the  benefit  of  public  navigation  without 
compensation.^'  This  principle  was  recognised  in  New  York 
in  favor  of  valuable  dock  rights,  where  water  grants  had 
been  made  by  the  state  with  covenants  for  the  enjoyment  of 
Avharfage.'-  Where  in  condemning  an  erection  made  under 
statutory  authority  compensation  has  been  refused  it  will  be 
foimd  that  there  existed  some  reservation,  express  or  implied, 
in  favor  of  the  public  right.' •■  But  some  courts  recognise  a 
right  to  compensation  also  in  cases  Avhere  the  improvement 
was  constructed  merely  under  license,  and  the  United  States 
Supreme  Court  has  taken  the  same  position  as  against  a 
municipal  ordinance  declaring  such  an  erection  to  be  a 
nuisance.'^ 

J;  407.  Obstructions  under  Act  of  Sept.  19,  1890.  — The  fed- 
eral act  of  Sepleml)er  19,  1(S9().  recjuii-cs  affirmative  authority 
of  law  for  any  obstruction,  not  erected  for  business  i)urp()ses, 
created  prior  to  the  passage  of  the  act,  and  the  consent  of 
the  Secretary  of  War  for  any  work  obstructing  navigation 
ill  a  iiavigaldc  A\'a1t'r  ol'  1lic  riiitcd  States  to  be  (^stablislicd 
after  said  date.'''  The  ad  of  .Mai-cli  :],  1899,  r.M|iiii-("s  the 
affirmative  authority  of  Congress  for  the  erection  of  any 
obstruction  to  the  navigable  (•ai)a('ity  of  , any  of  llic  navigable 
waters  of  the  I'nited  States.'"  'I'liese  acts  also  authorise  the 
Secretary  of  W;n-  to  direct  the  alteration  of  any  bridgi'  which 
he  lias  rejisuii  lo  l»elieve  is  an  unreiisoiKihle  ohstniction  to  the 
fret-  navigation  of  an.\'  such  naviiiable  water,  without  iiuiking 
j)rovision  for  compensation.  The  (|ues1ion  M'hether  this  legis- 
lation   is   constitutional    as   to    Inidges    previously    constructed 

II  SfP  on    I  his  Hiil).ic(l    8§   r)73-r)7H,  M(l.  L>58.     Peoi.lo  ex  rcl.  City  nf  Chi- 

irifra.  cufjo  v.  Wost  CliicMco  St.  H.  Co.,  203 

!-•  Ljin>{<lori   V.    Mayor,  &<•.,  of  .New  111.  .').'')1,  6S  N.    K.  7.S. 
York,    93    N.     Y.     1_'!»:     WilliaiiiH    v.  i*  Stale  v.  Siiitrcnt,    If)  Conn.  ;t.".S ; 

Mayor,    &<•.,    of    Now    York,    in")    X.  Lewis   v.    ['ortlaiKJ,    L'n    On-.    133,   3.') 

y.  41St,  11    .\.   K.  HL'n.  Pa.-,    '2r^(^■,    Ynfos    v.     Milwaukee,    10 

«3  Newport,     &>■.,     Mri.JKe     Co..     v.  Wall.  407. 
Knitcfl  Htatfs,  lO.")  U,  a.  470;  United  'f- Uniiod     States     v.     l{ellin-,rli:ini 

States   V.    Moline,   M'J    Ked.   Hep.  .WJ ;  Hay  Moom  Co..   170  U.  S.  L'll. 
ClasHeii    V.  Chesapeake  (iiiaiio  Co..   HI  i"|l    Siippl.    Ucv.    St;i1.    [i.    ODfi. 


408  RIPARIAN  EASEMENTS. 


■i-2: 


by  authority  of  law  has  so  far  been  left  uiidccidcd  \,\  th.. 
Supreme  Court/'  but  should,  it  seems,  be  decided  in  lavur 
of  the  right  to  compensation.' •** 

It  has  also  been  held  that  water  grants  l)y  tiie  stat.-  an- 
impliedly  subject  to  the  right  of  the  legislature  to  dirrct  fish- 
ways  to  be  built  to  allow  the  passage  of  fish  from  one  part 
of  the  stream  to  another.'" 

S  408.  The  easements  of  the  riparian  owner.  — 'rh.-  relation 
of  the  riparian  easements  or  advantages  with  respect  t<» 
navigable  waters,  to  the  rights  of  the  public  in  the  same,  pre- 
sents questions  upon  which  there  is  some  difference  of  opinion. 

If  we  r'egard  the  position  of  the  riparian  owner  as  analogous 
to  that  of  an  owner  of  property  abutting  upon  a  pul)lic  high- 
way,2<^'  there  is  undoubtedly  a  strong  equity  in  favor  of  an 
easement  which  would  at  least  preserve  to  liiui  tin-  nalui-.il 
advantages  of  his  location ;  that  is  to  say,  the  right  of  access 
to  the  river  and  the  right  to  have  the  river  contiiuie  to  flow 
by  his  land.  It  was  held  in  an  earlier  case  in  New  York^i  that 
an  owner  of  lands  on  the  Hudson  River  who  had  no  property 
on  the  shore  between  high  and  low  water  mark  Avas  not  en- 
titled to  compensation  from  a  railroad  company  which  in  pur- 
suance of  a  grant  from  the  legislature  constructed  a  railroad 
along  the  shore  below  high  water  mark  so  as  to  cut  off  all 
communications  between  the  land  and  the  river  otherwise  tlian 
across  the  railroad.     A  doctrine  similarly  adverse  to  riparian 

17  Eider  v.  United  States,  178  U.  Pennsylvania,  however,  this  is  re- 
S.  251,  1900.  garded  as  an  exercise  of  the  power 

18  The  Act  of  March  3,  1899,  of  eminent  domain.  Commonwealth 
seems  to  leave  the  question  of  com-  v.  Pennsylvania  Canal  Co.,  (Hi  Pa. 
pensation  deliberately  in  abeyance  41,  5  Am.  Rep.  329;  and  in  Massa- 
for  settlement  by  the  Supreme  chusetts  it  is  held  that  whore  in 
Court,  for  the  removal  of  obstruc-  compliance  with  a  charter  a  fishway 
tions  from  sunken  raft  is  directed  is  maintained,  different  fislnvays  t-an- 
expressly  without  liability  for  dam-  not  be  required,  Commonwealth  v. 
ages.      Compare   §    18   and    §    19   of  Essex  Co.,  13  Gray  239. 

Act.  -"  The  easements  of  the  owner  of 

19  Commissioners  on  Inland  Fish-  land  abutting  on  a  higliway,  how- 
eries  v.  Holyoke  Water  Power  Co.,  ever,  rest  very  commonly  upon 
104  Mass.  446;  Holyoke  Water  qualifications  of  the  original  act  of 
Power  Co.  v.  Lyman,  15  Wall  500;  dedication  or  condemnation,  wliich 
Parker  v.  People,  111  111.  581 ;  State  are  not  applicable  to  tlu-  n:.tnr:.l 
\.  Beardsley,  108  la.  396,  79  N.  W.  highway  of  a  river. 

138;   State  ex  rel.  Remley  v.   Meek,         21  Gould  v.   Hudson  River  R.   Co.. 
112   la.  338,   51    L.    R.   A.   414.     In     6  N.  Y.  522. 


428  QUALIFIED  PKOPEKTY.  §  408 

rights  has  been  put  forward  in  New  Jersey.--  After  the  de- 
cisions in  the  elevated  railroad  eases  had  recognised  abutters' 
easements  as  constitutional  rights  in  New  York,  the  Gould  case 
was  overruled  as  inconsistent  with  the  doctrine  established  in 
those  cases.23  An  owner  has  therefore  been  held  to  be  entitled 
to  compensation  where  an  embankment  or  driveway  is  con- 
structed along  the  bank  of  a  river  in  front  of  his  land  depriv- 
ing him  of  access  and  riparian  advantages.-^  The  same  doc- 
trine has  been  recognised  in  England.--'' 

But  it  is  held  in  New  York  that  easements  of  access  and 
other  water  rights  are  subordinate  to  the  public  right  of 
navigation,  and  to  everything  incidental  to  it,  and  that  there- 
fore a  riparian  owner  is  not  entitled  to  compensation  where 
his  right  of  access  is  cut  off  by  a  public  improvement  under- 
taken for  the  benefit  of  navigation.^c  The  same  principle  is 
recognised  by  the  Supreme  Court  of  the  United  States.  There- 
fore where  the  United  States  built  a  dike  on  the  Ohio  River 
for  the  improvement  of  its  navigation,  a  riparian  owner  who 
thereby  lost  valuMl)le  landing  facilities  was  not  entitled  to 
compensation.-'  This  principle  was  reaffirmed  in  Scranton  v. 
Wheeler.28  "If  the  riparian  owner  cannot  enjoy  access  to 
navigability  because  of  the  improvement  of  navigation  l)y  the 
construction  away  from  the  shore  line  of  works  in  a  pu])li(^ 
navigable  river  or  water,  and  if  such  right  of  access  ceases 
alone  for  that  reason  to  be  of  value,  there  is  not,  within  the 
meaning  oi"  llic  Constitution,  a  taking  of  private  property  for 
])ublic  use,  but  only  a  consequential  injury  to  a  right  whicli 
iiiust  be  enjoyed  as  was  said  in  the  Yates  case,  'in  due  sul)jec- 
tion  to  the  rights  of  llic  ])ubli(''  — an  injury  resulting  inci- 
dentally from  lilt'  ('X('i'cis(!  dI'  govcniiiiciitnl  powci-  i'or  the 
hi'iit'lit  of  the  general  ])ubli(',  and  from  wliicii  no  duty  ai-ises 
to  in:ik-e  oi'  secure  compensation  to  tin'  riparian  owner.     The 

--  Stcvc'im   V.    Patcisoii   &   Newark  -"  Sage    v.    Mayor   of   New    York, 

R.  Co.,  34  N.  J.  T..  r,:V2.  I't  N.  Y.  (il,  47  N.  E.  100(5,  3S  L. 

*•'  HiuiiHry   V.    New   York   &   N.    \'..  I».   A.  ti(l(i.     Ho  as  to  (lo.siniclion  of 

|{.  Co.,  i:i:5  X.  Y.  7i),  .30  N.   Vj.  651.  w.ilci-    power,    Canal    A|)prai.sors    v. 

So,  uIho,  Dclaplaine  V.  Cliicago  &  N.  People,     17    Weiid.    r)71  ;     People    v. 

\V.  K.  <■().,  41!  WiH.  'J14.  ('.■iiKiI  Apiiraisers,  X]  N.  Y.  401. 

24  III    re   City   of    New    ^'ork,    l'">x  ■-' (iiliHon    v.    TTnited    States,    l(i6 

N.  Y.  134,  01    X.  E.  ms.  V.  S.  209. 

'.•r-Duke  of  Hii.-flcii<Oi  v.   Metroi»ol-  i!"  179  U.  S.    Ill,    KM. 
itan  Boar-l  nf  Works,  L.  T?.  r,  If.  T>. 
418. 


§  -iUS  RIPAKiA.X  EASli.MEXTS.  429 

riparian  owner  acquired  the  ri^'ht  of  access  to  navi^iahility 
subject  to  the  contingency  that  such  ri^Mit  inijrht  hceoine 
valueless  in  consequence  of  the  erection,  under  coiiiix'tcut  au- 
thority, of  structures  on  the  submerj^'ed  lands  in  front  of  his 
property  for  the   purpose   of  improving  navigation." 

Where  the  public  right  of  navigation  is  surrendered  by 
legislative  authority  either  in  favor  of  the  use  of  the  water 
for  another  purpose,  or  in  favor  of  another  work  of  public 
improvement  (especially  in  favor  of  a  ])ridge),  there  is  author- 
ity for  holding  that  the  loss  to  ripai-iau  owners,  though  more 
sensible  to  them  than  to  the  public  at  large,  does  not  constitute 
a  special  legal  injury;  but  the  question  does  not  appear  to 
have  been  fully  considered  in  its  analogy  to  abutters'  rights 
in  case  of  vacation  of  a  street,  nor  in  connection  with  the 
provision  of  manj^  constitutions  that  private  property  shall 
not  be  damaged  for  public  use.^''  AVliere  Avaters  are  lield  in 
private  ownership  subject  to  the  public  easement  of  navigation, 
they  cannot  be  diverted  for  other  public  purposes,  e.  g.  for 
municipal  water  works,  without  compensation.-'"  But  such 
diversion  has  been  held  legitimate  where  the  water  is  owned 
by  the  state  in  trust  for  public  uses,  so  that  mill  owners  whose 
water  supply  is  impaired,  are  left  without  remedy.-"*^  There 
would,  how^ever,  be  great  reason  for  holding  that  public,  as 
well  as  private,  ownership  is  subject  to  the  right  of  the  lower 
riparian  proprietor  to  a  practically  unimpaired  flow  of  wati*r 
by  his  land. 

Statements  may  be  found  in  some  cases  to  the  effect  that  the 
riparian  owner  as  such  (i.  e.  without  title  to  land  under  water) 
has  a  right  to  erect  wharves  provided  he  does  not  interfere 
with  navigation, 32  but  the  more  correct  doctrine  is  that  the 
riparian  owner  has  merely  a  passive  or  im])lied  license  re- 
vocable before  execution,  which  can  ripen  into  a  right  only 

29  See  Blackwell  v.  Old  Colony  K.  of   Water    Commissioners,    ;")(!    .Minn. 

Co.,    122    Mass.    1;    Frost    v.    Wash-  4S5;  Watuppa  Reservoir  Co.  v.  Fall 

ington     Co.     E.     Co.,     96     Me.     7(5;  River,  147  Mass.  548;   see,  however, 

Lansing  v.  Smith,  8  Cow.  146;  Bell  same  case  154  :\rass.  305. 
V.  Quebec,  L.  R.  5  App.  C.  84.  3-' Button  v.  Strong,   1  Black.  23; 

:''0  Smith    v.    Rochester,    92    N.    Y.  Mather  v.  Chapman,  40  Conn.  3S2 ; 

463.     They  cannot  be  diverted  at  all  City  of  Madison  v.  Mayers,  97  Wis. 

for     private     speculative     purposes.  309;  Grant  v.  Davenport,  IS  la.  1*79, 

Priewe   v.   Wisconsin   State   Land   &  192;    assumed   without   discussion    in 

Jmpl.  Co.,  93  Wis.  534,  33  L.  R.  A.  Illinois  C.  R.  Co.  v.  Illiuois,  146  U. 

645.  S.  387,  464. 

31  Minneapolis   Mill  Co.   v.  Board 


430  QUALIFIED   PKOPEETV.  §  409 

by  statutory  recognition.'''^  Nor  has  the  riparian  owner  a  right 
to  phice  booms  in  irout  of  his  land  for  the  purpose  of  floating 
kigs.  Such  right  may  be  given  to  a  quasi-public  corporation 
acting  for  the  benefit  of  all  Avho  may  have  occasion  to  use  the 
stream  for  that  purpose,  although  the  OAvner  may  be  thereby 
excluded  from  direct  access  to  the  water,  such  improvement 
being  in  aid  of  the  navigation  of  the  stream.^^ 

^  409.  Riparian  land.— It  has  been  held  in  some  cases  that 
where,  in  conseciuence  of  a  river  improvciiiciit  for  the  purposes 
of  navigation,  the  current  of  the  stream  is  changed  and  grad- 
ually undermines  and  washes  away  the  land  of  a  I'ipaiian 
owner,  that  this  is  damnum  absque  injuria,  and  that  com- 
pensation is  therefore  not  due.^-"*  Probably  the  same  is  true 
where  through  the  raising  of  the  level  of  the  river  the  riparian 
owner  loses  facilities  for  drainage.'"'  But  where  water  is  cast 
upon  riparian  land,  flooding  it  and  rendering  it  useless  for 
agricultural  jjurposes,  there  is  a  taking  of  property  which  can- 
not be  constitutionally   authorised  without  compensation.''' 

.\n  interference  with  a  rii)arian  upland  ina\-  also  be  riMpiired 
for  protection  from  flood  and  inundation.  Is  such  upland 
subject  to  an  easement  in  that  behalf  so  that  the  owner  nnist 
yield  to  the  public  requirements  without  compensation  .'  The 
Supi'i'inc  Coui't  of  Massachusetts  in  Commonwealth  v.  'P('wls.r>- 
liur.\- ■"'  iii'ld  llial  tlic  legislature  to  protect  the  harl)or  of  Uostoa 
might  prohibit  the  owners  of  any  beach  in  the  town  of  Chelsea, 
from  removing  stones,  gravel  and  sand  from  such  beach,  and 
the  same  coufl.  (•(uhummiI  ing  u|)on  tliat  case  in  the  later  case  of 
( 'onimonwca  11  li    \.    .\  lucf'''''  said:     "That  when   land    is  so  sit- 

•••:!  StevciiM    \.    I'iitorsoii    ami    New-  73S,    ll'   T^.   1\.    A.    (i?)?,   .ind   st>o  dis- 

ark  K.  Cn.,  34  N.  .1.  Law  .l.'VJ ;  Cdhii  scnliiijj  oi>iiU(>ii   in    United  States   v. 

V.  WauHiiw  Koom  Co.,  47   Wis.   :U  !  ;  L.viinli.    1S8  U.  S.  445. 
Kevell  V.    i'mpl.-,    177    III.    Kis.      See  ••"  (Irand     Ra])i<ls     l^ooni      Co.     v. 

note  40  L.  lu  A.  •;;;.'..  .lanis,    :U)    Midi.    ;{0S;     Wliite    Deer 

•■'*  <'(iliii   V.   WaiiHaw   Boiini   Co.,   47  Creek  liiiproveinont  Co.  v.  Sassunan. 

Wis.   I'.ll;    Osl)()rn    v.    I'.dum   <'(H|iina-  (i7    Pa.    St.    4L'>;    Arini 1    \-.    (Ircen 

lion,    :JJ    Minn.    411i;    Craml    Hapid.H  T,a,v,  &e.,  Co.,  .31  Wis.  :{1() ;  l'nniit(>IIy 

Boom  Co.  V.  .JarviH,  :W   Mich.  :i(I.S.  v.  C.reen  Bay,  ot.e.,  Co.,  i:!  Wail.  KWi ; 

«r.  HolliHfer  V.  Union  Co.,  0  Conn.  Unit<"d    States   v.   Tiynali,    1SS    U.    S. 

4:'.(;.    IH.'t.H;    Creen    v.   Swift,   47   Cal.  44.');     New     \nvk     Xavijratinn     I-.iw, 
.').'H>;     Urookrt    v.    (JCMJar    Urooks     I  in 


/  _. 


Iirr)ve?ncnt     f'i>.,     '■*■'     Maine     17,     I'.t  -•'II     Mete.    r>r,,    IslC,    Cilluucd    in 

Atl.  S7.  I  Indies  V.    I'erin.',   L' 1    linn.  .'')I(). 

•'•"  MillM  V.  Uniteil  SlatoH.    U\   I'.d.  -"7   CnsliinK  .53. 


§409  RIPARIAN    LAND.  j.,j 

uated  that  it  forms  a  natural  hai-i-ier  to  i-ivfi-s  or  tidal  wati  r 
courses,  the  owner  cannot  justifiably  rciiiovc  it  to  sudi  an 
extent  as  to  permit  the  waters  to  desert  their  natural  channels 
and  overflow  and  perhaps  inundate  fields  and  villat,'es."  lint 
if  in  accordance  Avith  this  doctrine  the  i-iparian  owin-i-  mav  In- 
prohibited  from  weakening  natural  eiiVoankments,  it  does  not 
follow  necessarily,  that,  as  the  Massachusetts  court  intimates, 
he  may  be  compelled  to  construct  or  even  repair  embankments 
for  the  public  benefit  at  his  private  expense.-*"  Such  a  duty 
seems  to  have  been  imposed  upon  riparian  owners  under  early 
Louisiana  statutes, '^  but  is  unknown  in  other  states.-*- 

In  Louisiana  it  is  eertainl^y  settled  that  embankments  may 
be  built  at  j)ublic  expense  without  paying  to  the  riparian  pro- 
prietor compensation  for  his  land  which  is  appropriated  for 
that  purpose.  The  Supreme  Court  of  Louisiana  has  justified 
this  as  an  exercise  of  the  police  poAver,-*-'  but  the  United  States 
Supreme  Court  has  upheld  such  appropriation  as  an  exercise 
of  the  public  easement  for  making  and  repairing  levees,  roads 
and  other  common  or  public  works  to  which  by  the  civil  codt^ 
of  that  state^^  riparian  lands  are  subject,  so  that  the  burden 
qualifies  the  right  of  property  ah  initio.^^     The  peculiar  juris- 

+0 "  Take    the    case    of    the    River  declared    unconstitutional   which   un- 

Mississippi,    where    large    tracts    of  dertook  to   make  it   unlawful   for  a 

country  with  cities  and  villages  de-  railroad  company  to  make  any  open- 

pend     for     their     protection     upon  ing  in   its  causeway   through   which 

the    natural     river    bank    which     is  tidewater  from  the  meadows  beyond 

private    property.       Perhaps    under  might  be  discharged  u[)on  a  certain 

such  circumstances  it  might  not  bo  tract    of    land.     Koch    v.    Delaware, 

too  much  to  say,  not  only  that  the  etc.,  R.  Co.,  53  X.  J.  L.  256. 

owner    cannot    do    any    positive    act  ^'■^  Bass  v.  The  State,  34  La.  Ann. 

towards   removing   the   embankment,  494;    Ruch  v.   New   Orleans,   43   La. 

Imt   that   he   may   properly   be   held  Ann.  275;   Peart   v.   Meeker,  45  La. 

responsible  for  the  permissive  waste  Ann.    421,    12    Sou.    490;     p]gan    v. 

of    it    by    negligence    and    inatten-  Hart,  45  La.  Ann.  1358,  14  Sou.  244. 

tion. "      Commonwealth   v.    Alger,    7  ■«■*  Sec.  661. 

Cush.  53.  45  Eldridge   v.    Trezevant,    160    U. 

41  Act  of  1829,  cited  in  Counsel 's  vS.  452.  At  common  law  the  pub- 
Brief  in  Eldridge  v.  Trezevant,  160  lie  right  of  navigation  does  not 
U.  S.  452.  include  any  right  to  use  the  banks 

42  An  act  of  Illinois  of  1873  for  purposes  in  aid  of  navigation, 
which  in  an  indefinite  way  reeog-  Ball  v.  Herbert.  3  Term  Rep.  253; 
uised  the  duty  of  riparian  owners  Ensminger  v.  People,  47  111.  284. 
to  maintain  dikes  in  order  to  pre-  In  Oregon  an  easement  of  necessity 
vent  disastrous  floods,  was  repealed  is  recognised.  Weise  v.  Smith,  3 
in  1899.     In  New  Jersey  an  act  was  Ore,  445. 


432  QUALIFIED  PEOPEKTY.  5;  410 

prudence  of  Louisiana  adopted  from  the  French  civil  code 
cannot,  of  course,  conclude  the  same  question  for  other 
states.^" 

:mill  DA:\r  privileges.    §§  410-413. 

§  410.  Legislation.— The  leji:islation  of  a  number  of  states 
reg:arding:  the  construction  of  mill  dams  presents  a  peculinr 
and  perhaps  anomalous  qualification  of  property  rights.  A 
list  of  these  acts  and  a  full  discussion  of  their  nature  will  be 
found  in  the  case  of  Head  v.  Amoskeag  ^Manufacturing  Co.-*" 
The  legislation  of  Massachusetts  inaugurated  one  type  of  this 
legislation,  that  of  Virginia  another.-*^  The  statute  of  ]\Iassa- 
chusetts-*^  authorises  any  person  to  erect  and  maintain  a 
water  mill,  and  a  dam  to  raise  water  for  working  it,  upon 
and  across  any  stream  not  navigable,  provided  he  does  not 
thereby  interfere  with  another  mill  already  lawfully  existing 
on  the  same  stream.  If  the  dam  cause  the  water  to  flow  back 
and  overflow  the  lands  of  other  owners  on  the  stream,  the 
statute  gives  to  such  owners  a  right  of  action  for  damages, 
at  their  option  either  in  gross  or  by  annual  compensation. 
The  states  following  Virginia  provide  for  proceedings  pi-ior 
to  the  erection  of  the  dam  to  adjust  conflicting  interests,  and 
also  for  llic  iiiotection  of  residences,  gardens,  etc.'^"  Under 
both  systems  alike  the  law  expressly  sanctions  the  use  of 
])roperty  whidi  involves  the  invasion  of  other  property,  com- 
pelling the  owner  ot  the  iattei-  property  to  accept  compensa- 
tion in  lieu  (d"  other  remedies  which  niight  protect  or  restore 
his  original  rights.  Since  the  owner  of  the  flooded  land  does 
not  sh;ii-e  direclly  in  llie  IxMielil  ot"  the  mill,  the  case  hicks 
that  c(ininiuni1\-  ol'  interest  which  is  characteristic  of  com- 
jtulsory  drainage.-''''  It  is  also  cleiir  th;i1  the  (hinuige  done  the 
flooih-d  hind  e;inn<»1  lie  regarded  ;is  consetpicnl  i;il  merely,  i.  e. 
as  a  loss  of  benelits  incident  !(»  conditions  to  the  iii;iiiit(Mi;ince 
or  contiinnince  of  which  the  ownei-  h;id  no  right  :  for  the  Ihrnw- 

••"  TIh'     Fri-ncli     l.iw     n-cupnisoH    a  *'•  li:<   V.  S.  !t. 

iiiiinlMT  of  HcrvitiKli'H  (lualifyinn  tin-  "*  Mass.    I'rov.    T/iws    I71IM  I.    ili. 

•  nvnorHliip     of      land      wliicli      rt'HuH  1.");    Viij,Miiia    Ar\    nf    ITSfi.    I  l'    ilcn 

from    itH    location,    ho    in    favor    of  in^'s  StatiitcH,    |i.    IS7. 
liiyhwavH,        railroads,        cfmctcriofl,  '"  Hcv.   LawH,  <  li.    I'.KI. 

iirincral  Hprin^H,  and  jitddic  ini|irov('-  f'"' (iould     Waters    §    Ii(t7.    f)i)<l-(il  7, 

nn-ntH,      Frr-nrli    Civil    Cod.-    §     (\r,{),  (iL'l,  (]'2'2. 
Pucrocq      Droit      adminiHtratif,      8  f''  §§  441,  442,  infra. 

lL'90-nir.. 


^411  MILL  DA.M    I'll!  VI  LEGES.  43;{ 

ing-  of  water  ui)on  laud  by  artilieial  ai-i'an<,'('m('nts  is  propnrly 
held  to  be  an  invasion  or  taking  of  propi-rty,  and  a  statuti- 
authorising  it  without  compensation  is  unconstitutional.' 

§  411.  Theory  of  Massachusetts  courts.— The  courts  of  Mas- 
sachusetts— and  their  doctrine  has  l>een  adopted  by  the  I'nitfd 
States  Supreme  Court — regard  the  mill  owner's  privilege  as 
due  simply  to  the  recognition  by  law  of  the  fact  that  through 
the  laws  of  nature  the  full  enjoyment  of  his  watci-  riglits  re- 
quires the  modifications  of  the  rights  of  others,  it  being  the 
object  of  the  statute  "to  provide  for  the  most  usefid  ;iiid 
beneficial  occupation  and  enjoyment  of  natural  streams  ami 
watercourses,  where  the  absolute  right  of  each  proprietoi-  to 
use  his  own  land  and  water  privileges,  at  .his  own  pleasure, 
cannot  be  fully  enjoyed,  and  one  must  of  necessity,  in  some 
degree,  yield  to  the  other,  "^  and  the  United  States  Supreme 
Court  speaks  of  a  "just  and  reasonable  exercise  of  the  power 
of  the  legislature  having  regard  to  the  public  good  in  a  more 
general  sense,  as  well  as  to  the  rights  of  the  riparian  proprie- 
tors, to  regulate  the  use  of  the  water  power  of  running  streams 
which  without  some  such  regulation  could  not  be  beneficially 
used. '  '^ 

How  is  this  legislative  authorisation  to  one  OAvner  to  invade 
the  property  of  another  to  be  reconciled  with  the  constitutional 
security  of  property  rights?  That  some  diificulty  exists  is  not 
disputed.  Chief  Justice  Shaw  in  1851-«  said  "Whether,  if  this 
were  an  original  question  this  legislation  would  be  considered 
as  trenching  too  closely  upon  the  great  principle  which  gives 
security  to  private  rights,  it  seems  now  too  late  to  iii(|uire,  such 
legislation  having  been  in  full  operation  in  this  state  a  century 
and  a  half."  And  similar  doubts  have  been  expressed  in  otlier 
states.^ 

§  412.  Taking  for  public  use.— The  grant  of  the  right  to 
flood  the  lands  of  others  is  most  satisfactorily  accounted  for 
as  a  taking  for  public  use,  if  the  erection  of  the  dam  can  be 

1  Pnmpelly   v.   Green  Bay   Co.,   13  3  Head   v.   Amoskeag  Manufactur- 

Wall     166;     Carlson     v.     St.     Louis  ing  Co.,  113  U.  S.  0. 

Kiver  Dam,  etc.,  Co.,  73  Minn.  128,  *  Murdock    v.    Stickney,    S    Ciisli. 

41    L.    E.    A,    371;    Trenton    Water  113. 

Power  Co.  v.  Eaff,  36  N.  J.  L.  335.  r.  Jordan    v.    Woodward,    40    Mo. 

2Fiske    V.    Framington    Manufac-  317;  Fisher  v.  Horicon  Co.,  10  Wis. 

ttiring  Co.,  12  Pick.  68.  351. 
28 


434  QUALIFIED  PKOPERTl'.  <   412 

said  to  constitute  a  public  use.     lu  a  few  states  this  has  been 
denied,  and  the  legishition  in  consequence  been  declared  un- 
constitutional,*' while  in  others  the  i)ublic  use  has  been  con- 
ceded only  for  o:rist  mills,  which  must  grind  for  everybody,  at 
legal  tolls,  but  not  for  manufacturing  mills."     Vpon  a   more 
liberal  view,  however,  the  encouragement  of  manufactures  and 
the  development  of  the  natural  resources  of  the  state  is  held  to 
be  of  sufficient  public  interest  to  justify  the  taking  of  private 
property.^    Some  statutes  by  confining  their  provisions  to  pub- 
lic mills  (111.  Rev.  Stat.  Ch.  92  §  1)  seem  to  leave  the  question 
of  pul)lie   use   in   every   case   to  judicial  determination.     The 
decision  of  the  Supreme  Court  in  Head  v.  Amoskeag  Co.  does 
not  make  it  quite  clear  whether  the  court  would  sustain  the 
exercise  of  the  power  for  the  exclusive  private  advantage  of 
the  land  of  the  mill  owner.  l)ut  if  such  a  case  should  arise  many 
courts  would  undoubtedly  hold  it  to  be  an  unjustifiable  taking 
for  private  use.     The  difficulty  presented  by  the  laws  of  the 
jNIassachusetts  type  is  that  there  is  no  in-ovision  for  securing 
tho  application   of  the  water  power  to   a  use   even  remotely 
public.     Tlu'  Sui)rL-nie  Court  of  Massachusetts  recognises  this 
and  seeks  to  avoid  the  objection  arising  on  this   ground   by 
contending  that  the  flowage  does  not  constitute  the  taking  of 
j)i-ivatr  property  or  right,  bnf  is  iiicfcl\-  a   mode  of  I'cgulating 
common  rights'*  — a  view  to  wliidi  il  is  ditlicuH  to  assent.     For 
the  law  of  joint  ownership  presents  no  analogous  case  of  grant- 
ing to  one  of  the  parties  exclusive  advantages  to  the  prejudice 
of  the  others,   reniitt  in^;-  the   latter  to   a    cans(>   of   action    for 
<lainages.    Assnniini:  tliiit  there  is  a  taking  of  pi'ivate  i)ropi'i-ly 
i'l.i-  private  use,  it  can  hr  justified,  if  at  all.  only  upon  the  the- 
ory, that  where  two  pieces  of  property  are  so  situated  with  ref- 
erence to  eadi  othei-  that  one  cannot   he  enjoyed  to  tlie  fullest 
a<lvantage    without  a    c(unp;i  r;it  ively    sliiiht    iiii|>aii-inent    of   the 

•I  Tyler    V.    B.;i.li.T.     It    Vt.    648,  Tlu;  Virfjinhi  A<l   of  tTsn  .-ipplio.!  lo 

1H71,   jjriHt    mill    :i\vncrs  in    Vermont  ixr'^si  mills  only. 

not  b<-in«  comiiellc'l  to  receive  <iv:nu  «  Huston    &c.   Mill    Cui.'n    v.    Ncw- 

for   Krin.linK;    TiOiiphhridKO   v.   liar-  m:ui,     iL'     I'ick.     I(i7 ;      ()lmste:i<l      v. 

riH,    4'-'    (iii.    r,Ol),    1S71;    Kyorson    v.  Ciimi*.     :V.\     Conn,     .l.'Jli ;      Miller     v. 

Tirown,  3.')  Mi.'li.  :VX.\,  1H77;  Ciaylonl  Troost,    14    Minn.   'M]r^;    Nowcoml.    v. 

V.  Han'itiiry   Distri.-t   of  Cliieajro.  'Jf)4  Hmilli,    L'    T'inn.    (Wis.)     1:51;    Hmn- 

111    r(7fi    08  N.   E.  ^2-.  ''•'""    ^-   'I'lionipson,   Itf)    la.  421. 

-  UiiTtWun    V.     (ion.ilptt,     3     Ycrn.  "  Koueil     v.     I'.osfon.      Ill      Mass. 

41;   I'.Mttoms  V.  I'.rewor,  M  Ala.  'JSS.  •1.14,  40(1. 


5;  418  RIGHT  TO  FLOOD  LAM).  435 

riylits  of  the  other,  a  burden  may  Ix'  imposi-d  upon  \ho  oilier 
upon  payment  of  compensation.  Thi.s  theory  underlies  the  es- 
tablishment of  private  roads  and  private  drains,  discussed  in 
another  connection. 

There  is  sufficient  truth  in  the  view  of  the  mill  acts  as  a 
method  of  regulating  rights,  which  should  perhaps  be  de- 
scribed as  interdependent  rather  than  as  common,  to  differen- 
tiate the  legislative  power  exercised  in  them  from  the  power 
of  eminent  domain. 

It  seems  to  be  assumed  that  the  flooding  of  other  lands  may 
be  a  necessary  incident  to  the  maintenance  of  a  mill  dam.  It  is 
somewhat  inconsistent  with  this  view,  that  the  owner  of  the 
land  to  be  flooded  has,  as  it  seenis,  the  right  to  protect  it  by 
embankments.^'^  But  the  great  cost  of  dikes  or  other  prote(;t- 
ing  works  as  compared  with  the  slight  damage  caused  by  flood- 
ing may  render  the  right  to  overflow  a  practical-  necessity. 

Both  in  France  and  Germany  the  flooding  of  other  lands  is 
forbidden,  and  an  administrative  license  is  required  for  every 
dam.i^ 

§  413.  Other  legislation  authorising  the  flooding  of  land.— 
To  Avhat  extent  the  analogy  of  the  mill  acts  may  be  carried 
can  only  be  determined  by  further  adjudication.  The  courts 
Avill  probably  require  in  all  cases  either  something  like  a  natu- 
ral servitude,  or  some  degree  of  public  interest  in  the  adequate 
utilisation  of  natural  resources,  or  both.  Thus  lands  may  b(> 
flooded  through  the  operation  of  booms  or  similar  works  for 
floating  lumber,  on  payment  of  compensation.^-  In  IMassachu- 
setts  the  flooding  of  lands  is  permitted  in  the  interest  of  cran- 
berry culture  ;i-^  the  Supreme  Court  of  Wisconsin  has  left  the 
(juestion  of  the  constitutionality  of  similar  legislation  unde- 
termined.^^  An  extreme  case  was  presented  in  Turner  v. 
Nyei5  where  an  act  allowed  the  owner  of  land  to  erect  dams 
to  raise  a  pond  for  the  cultivation  of  useful  fishes,  and  to  flood 
other  lands  for  that  purpose,  the  owner  of  the  latter  l;tnd  to 

i*>  Williams    v.    Nelson,     -23    Pick.  12  New    York    Navigation    Law,    § 

141 ;    :\Iurdoek   v.    Stickney,   8   Cush.  72,   and  cases  cited   note   37.   §   40i), 

113.  supra. 

11  Block,  Dietionnaire,  Cours  d 'can  I'i  Rev.   Laws,  ch.    U>6,   §   39. 

non-navigables    16;     German    Trade  1*  Ramsdale     v.     Foote,     55     Wis. 

Code  §   16;    Prussian  Law  Febr.  28,  557. 

1843,  §  13.  i--]o4  Mass.  579. 


436  QUALIFIED  PROPERTY.  §414 

be  allowed  damages  unless  he  chose  to  embank  his  land  and 
stop  the  flowage.  The  act  was  upheld  on  the  ground  that 
though  the  object  of  the  person  erecting  the  dam  was  his  own 
pleasure  and  profit,  the  public  would  be  benefited  by  the  in- 
troduction of  a  new  and  profitable  industry. 

In  New  York  a  statute  authorised  any  person  desirous  of 
floating  logs,  etc.,  down  a  river  recognised  as  a  public  high- 
way, to  construct  a  chute  in  any  dam  across  it,  and  to  con- 
struct such  piers  or  booms  as  might  be  necessary  for  the  pass- 
age of  logs,  paying  to  the  OAvner  of  lands  floated  thereby  the 
damages  that  he  might  sustain.  The  act  was  held  unconsti- 
tutional partly  because  the  provision  for  compensation  was 
not  sufficiently  certain  or  secure,  but  partly  also  on  the  ground 
that  it  could  not  be  deemed  to  be  an  appropriation  for  public 
use,  if  each  person  was  allowed  to  invade  private  property  of 
another  for  his  own  purposes,  indemnifying  for  each  particular 
use,  instead  of  making  an  appropriation  for  the  public  benefit 
once  for  all,  the  result  being  in  reality  a  taking  for  private 
use.  The  court  likens  this  to  a  statute  which  instead  of  con- 
demning ground  for  a  public  common  should  allow  any  person 
to  go  on  it  for  recreation,  paying  compensation  for  his  par- 
ticular use  to  the  owner.^^  The  difficulty  is  substantially  the 
same  as  in  tlic  mill  dam  cases,  and  the  New  York  court  has 
adopted  the  stricter  view.  The  court  recognises  that  the  power 
of  eminent  doiii.iiii  iiiny  he  exercised  for  the  permanent  con- 
version of  a  brook  into  a  i)ublic  highway  and  that  the  use  for 
floating  logs  mak(^s  it  a  public  highway.^' 

NATURAL  WATER  AS  QUALIFIED   PROPERTY.     §§  414-417. 

ij  414.  Common  law  easements.— In  i-oniit'dioii  Avith  the  sub- 
ject of  (|ualifie(l  property  reference  should  be  made  to  the  de- 
velopiiHMit  of  till-  law  of  watei'  ;iiiil  watercourses  iu  tli(>  and 
states  of  the  West. 

A1  coiiiiiKiii  law  the  right  of  the  riparian  propi-ictor  to  the 
water  (tf  llic  stream  running  by  or  tlironvdi  his  Liiid  is  (|ualified 
by  easements  in  favor  of  olln'c  fi|)aii;iii  ju-oprietors.  "By  the 
eommon  law.  the  rii)arian  owih  r  on  ;i  stream  not  navigable, 
tak'es  the  lanil  to  the  center  of  the  stream,  and  such  owner  has 
til"'  fight  to  the  use  of  tlu^  water  flowing  over  the  land  as  an 

i-'HrcwHtor  v.  J.  &  .T.  Rogers  Co.,  ''  Uo  PiiriiH,  1.'>.')  N.  Y.  23,  49  N. 

Hi'.t  \.  Y.  73.  fi'J  \.  K.   HVl.  E,  L'46. 


§415  PRIOR  APPRUriilATIoX.  j;{7 

incident  to  his  estate.  And  as  all  such  owners  on  the  stream 
have  an  equality  of  right  to  the  use  of  the  water,  as  it  naturally 
flows,  in  quality,  and  without  diminution  in  quantity,  except 
so  far  as  such  diminution  may  be  created  by  tin*  rcasonabb- 
use  of  the  water  for  certain  domestic,  a{,'rieulturai  or  manu- 
facturing purposes,  there  could  not  be,  according  to  that  law, 
any  such  diversion  or  use  of  the  water  by  one  owner  as  would 
work  material  detriment  to  any  other  OAvner  below  him.  .\or 
could  the  water  by  one  owner  be  so  retarded  in  its  flow  as  to 
be  thrown  back  to  the  injury  of  another  owner  above  him."'** 

§  415.  Doctrine  of  prior  appropriation.  — In  consequence  of 
the  scarcity  of  water  in  the  Pacific  states,  and  the  demand  for 
it  in  mining  operations,  a  custom  sprang  up  materially  altering 
the  common  law,  which  is  known  as  the  doctrine  of  prior  ap- 
propriation. To  quote  again  from  the  case  last  cited:  "This 
equality  of  right  among  all  the  ])roprietors  on  the  same  stream 
would  have  been  incompatible  with  any  extended  diversion  of 
the  water  by  one  proprietor,  and  its  conversance  for  mining 
purposes  to  points  from  which  it  could  not  be  restored  to  the 
stream.  But  the  government  being  the  sole  proprietor  of  all 
the  public  lands,  whether  bordering  on  streams  or  otherwise, 
there  was  no  occasion  for  the  application  of  the  common  law 
doctrine  of  riparian  i^roprietorship  with  respect  to  the  waters 
of  those  streams.  The  government,  b}^  its  silent  acquiescence, 
assented  to  the  general  occupation  of  the  public  lands  for  min- 
ing, and  to  encourage  their  free  and  unlimited  use  for  that 
purpose,  reserved  such  lands  as  were  mineral  from  sale  and 
the  acquisition  of  title  by  settlement.  And  he  who  first  con- 
nects his  own  labor  with  property  thus  situated  and  open  to 
general  exploration  does,  in  natural  justice,  acquire  a  better 
right  to  its  use  and  enjoyment  than  others  who  have  not  given 
such  labor."  The  court  then  quotes  from  an  early  California 
ease^^  as  follows:  "If  there  are,  as  must  be  admitted,  many 
things  connected  with  this  system,  which  are  crude  and  inidi- 
gested,  and  subject  to  fluctuation  and  dispute,  there  are  still 
some,  which  a  universal  sense  of  necessity  and  propriety  have 
so  firmly  fixed  as  that  they  have  come  to  be  looked  upon  as 
having  the  force  and  effect  of  res  judicata.  Among  these  the 
most  important  are  the  rights  of  miners  to  be  protected  in 

18  Atchison   v.   Peterson,   20  "Wall.  lo  Irwin    v.    Phillips,    5    Cal.    140, 

507.  1855. 


438  QUALli^IED  PROPERTY.  §  41li 

their  selected  localities,  and  the  rights  of  those  who,  by  prior 
appropriation,  have  taken  the  waters  from  their  natnral  beds, 
and  by  costly  artificial  works  have  conducted  them  for  miles 
over  mountains  and  ravines  to  supply  the  necessities  of  gold 
digrgers  and  without  which  the  most  important  interests  of  the 
mineral  region  would  remain  without  development.  So  fully 
recognised  have  become  these  rights,  that  without  any  specific 
legislation  conferring  or  confirming  them,  they  are  alluded  to 
and  spoken  of  in  various  Acts  of  the  Legislature  in  the  same 
manner  as  if  they  were  rights  which  had  been  vested  by  the 
most  distinct  expression  of  the  will  of  the  law  makers." 

In  1866  the  doctrine  was  recognised  by  legislation  of  Con- 
g:ress,  now  ^  2339  and  2340  of  the  Revised  Statutes :  ' '  When- 
ever, by  priority  of  possession,  rights  to  the  use  of  water  for 
mining,  agricultural,  manufacturing  or  other  purposes,  have 
vested  and  accrued,  and  the  same  are  recognised  and  acknowl- 
edged by  the  local  customs,  laws,  and  the  decisions  of  the 
courts,  the  possessors  and  owners  of  such  vested  rights  shall 
l)c'  maintained  and  protected  in  llie  same.  *  *  *  AH  pat- 
ents g:ranted,  or  pre-emption  or  homesteads  allowed,  shall  be 
subject  to  any  vested  and  accrued  water  rights,  or  rights  to 
ditches  and  reservoirs  used  in  connection  with  such  water 
rights,  as  may  have  been  acquired  under  or  recognised  by  the 
l)receding  section." 

5$  416.     Subordination  of  right  to  beneficial  purpose.— The 

right  of  piinr  nppropriation,  ai)plied  first  to  mining,  has  as- 
sumed increased  importance  with  the  growth  of  agricultural 
interests.  Where  the  successful  cultivation  of  the  land  de- 
jii'iids  u])<)ii  ir'rigation,  the  control  of  water  means  the  control 
of  hin<I,  ;iii(l  tlic  M'liolc  surrounding  country  could  be  made 
1  i-il)iit;iry  to  ;in(l  jilisolntcly  dependent  upon  a  few  i-iparian 
owners,  if  Ilic  docti-inc  of  jirioi-  a|)|ir(i|>ri;il  ion  were  abused  or 
misai)pli('d.  To  avoid  this,  tlw  (li»ctrin<'  li.id  to  he  developed 
Ko  as  to  become  an  insti  iinient  to  serve  rather  than  to  control 
the  pu])lic  interest.  Tliis  was  done  by  interpreting:  the  right 
as  limited  in  its  existence  by  its  beneficial  exercise.  "Tlie  ap- 
propriation nnist  bo  for  some  useful  or  beneficial  puri)()se,  and 
when  the  af)propriator  and  his  successors  in  interest  cease;  to 
use  it  for  sui-h   ;i    purpose,  the  right  ceases. "^^     The  appro- 

2"  Civil  Coflo  of  flail  fornia,  §   I  II  I. 


i5  417  WATEK   iX   THE   ARID   WEST. 


■k6'J 


priator  cannot  claim  more  than  the  amount  which  he  actually 
diverts,  and  which  he  can  use  beneficially  for  the  purpose  toi 
which  he  has  diverted  it.  "The  rights  acquired  by  tlie  ui)pr<i- 
priator  must  be  exercised  with  reference  to  the  general  condi- 
tion of  the  country  and  the  necessities  of  the  coiiiiuunily  and 
measured  in  their  extent  by  the  actual  needs  of  the  particular 
purpose  for  which  the  appropriation  is  nuide  and  not  for  the 
purpose  of  obtaining  a  monopoly  of  the  water  so  as  to  prt-vcnt 
its  use  for  a  beneficial  purpose  by  other  persons ;  the  diversion 
of  the  water  ripens  into  a  valid  appropriation  only  where  it  is 
utilised  by  the  appropriator  for  a  beneficial  use."-'  It  follows 
from  this  that  he  cannot  hold  his  right  for  speculative  pur- 
poses. This  view  becomes  of  special  importance  in  its  applica- 
tion to  irrigation  companies.  "Undoubtedly,  those  who,  by 
labor  or  by  the  payment  of  money,  actually  construct  an 
irrigating  ditch,  may  thereby  acquire  a  prior  right  to  the  water 
which  may  be  diverted  therein,  provided  they  apply  the  same 
to  a  beneficial  use  within  a  reasonable  time  after  such  diver- 
sion. *  *  *  Those  w'ho  construct  ditches  and  divert  water 
for  general  purposes  of  irrigation  must,  within  a  reasonable 
time,  apply  the  water  to  a  beneficial  use,  or  else,  upon  proper 
application  and  for  proper  consideration,  they  must  dispose 
of  the  same  to  those  who  are  ready  to  make  a  beneficial  use 
of  it.  If  ditch  companies  are  unwilling  to  be  charged  with 
such  duties  and  responsibilities,  they  must  leave  the  water  in 
the  natural  stream.  "22  Such  a  company  "mu!?t  be  regarded 
merely  as  an  intermediate  agency,  existing  for  the  purpose 
of  aiding  consumers  in  the  exercise  of  their  constitutional 
rights,  as  well  as  a  private  enterprise  prosecuted  for  the  bene- 
fit of  its  owners."-^ 

§  417.  Constitutional  recognition  of  doctrine.— This  view 
has  been  embodied  in  the  organic  laws  of  most  of  the  ariil 
states.  So  in  California,  Constitution  Art.  XTV. :  "The  use  of 
all  welter  now  appropriated,  or  that  may  hereafter  be  a  impro- 
priated, for  sale,  rental,  or  distribution,  is  hereby  declared  a 
public  use,  and  subject  to  the  regulation  and  control  of  the 
State,  in  the  manner  to  be  prescribed  by  law."     Colorado, 

21  Hewitt   V.   Story,   64   Fed.   Eep.  2.1  Wheeler  v.  Northern  Colo.  I  rri^. 
510,  30  L.  E.  A.  265.                                  Co.,  10  Colo.  582.  17  P:i.-.  4S7. 

22  Combs   V.   Agric.   Ditch   Co.,   17 
Colo.  146. 


440  QUALIFIED  PROPERTY.  §  417 

Art.  XTL  §  5:  "The  water  of  every  natural  stream,  not  here- 
tofore appropriated  within  the  state  of  Colorado,  is  hereby 
declared  the  property  of  the  public,  and  the  same  is  dedicated 
to  the  use  of  the  people  of  the  state,  subject  to  appropria- 
tion as  hereinafter  provided."  "Wyoming-,  Art.  I.  §31: 
'"Water  being  essential  to  industrial  prosperity,  of  limited 
amount,  and  easy  of  diversion  from  its  natural  channels,  its 
control  must  be  in  the  state,  -which,  in  providing  for  its  use, 
shall  equally  guard  all  the  various  interests  involved."  Art. 
VIII.  v;  1 :  "  The  waters  of  all  natural  streams,  springs,  lakes  or 
other  collections  of  still  water,  within  the  boundaries  of  the 
state,  are  hereby  declared  to  be  the  property  of  the  state."  §  2. 
"There  shall  be  constituted  a  board  of  control  *  *  *  which 
shall  *  *  *  have  the  supervision  of  the  waters  of  the 
state  and  of  their  appropriation,  distribution  and  diversion, 
and  of  the  various  ollices  connected  therewith.  Its  decisions 
to  be  subject  to  review  by  the  courts  of  the  state."  §  3.  "Pri- 
ority of  appropriation  for  beneficial  uses  shall  give  the  better 
right.  No  appropriation  shall  l)c  denied  except  when  such 
denial  is  demandcti  hy  the  public  interests."  Under  tlu'  pi-o- 
visions  of  its  constitution,  Wyoming  has  enacted  comprehen- 
sive legislation,  by  which  .ill  water  rights  have  been  placed 
under  effective  state  control.-^  Water  has  tliiis  practically 
become  property  held  in  trust  for  the  beneiit  of  the  com- 
munity, the  owner  being  allow(Ml  a  fail-  profit  and  compensa- 
tion for  his  expenditure  and  labor.  Like  the  owner  of  a  rail- 
road, he  must  submit  to  have  his  charges  regulated  by  law, 
and  is  niiilef  obligation  t<»  render  his  services  to  consunu^rs 
on  equal  l<'i-ins.--'  And  lliis  on  the  ground,  not  that  he  has 
devoted  his  pi-operty  to  a  pubru-  use,  but  thai  it  is  a  virtual 
Mionoj)oly,  and  that  he  is  therefore  allowe<i  lo  ;ie(|nire  only  a 
(|Mali(ie(l  |)ropert\'  in  it.  This  is  ])erhaps  the  most  inipot-tant 
ai»plieation  to  which  the  doctrine  of  property  alVected  with  a 
l»iililie  intei-cst  has  \ft  lucii  carried.  It  would  S(>ein  to  he 
innnateci;!!  to  the  validity  of  state  legislation  eiiroreing  e(|nal 
ser-vice  on  i-r;isonal)le  1<inis  whether  the  lii-sl  a[)propriat ion 
ol'  the  watei*  right  alTected  1ool<  place  on  government  oi-  on 
j)riva1e  hind,  oi-  liefoi-e  oy  jij'lei-  the  enactne-nt  of  constitu- 
tional provisions  drc|;iriii!j  Hie  pnlilii-  use.     Siidi  decL-iration  is 

-*  J'':iriii     liivcHtiiiciii     (  II.     \.    ("ar-  '-'•  HIohhct     \,     Sail     l{ivcT     Valley 

pentcr,  !•  Wye.  110,  .'".O  I..  R.  A.  747.      Canal  Co.  (Ariz.),  On  Pac.  33L'. 


§418 


GAME  AND  FISH. 


441 


expressive  of  what  is  believed  to  b,-  tb.-  biw.  an. I  iUn-s  not 
intend  to  make  new  law.  So,  in  Illinois,  ware-houses  were 
declared  to  be  affected  by  a  public  interest  only  by  the  con- 
stitution of  1870,  but  the  validity  of  the  new  restrictive  legis- 
lation Avas  upheld  in  Munn  v.  Illinois,  as  to  warehouses  estab- 
lished before  the  enactment  of  the  constitution.-" 

GAME  AND  FISH.     §§  4l8-4L'l. 

§418.  Common  law  and  legislation.^'-The  Roman  law  re- 
garded animals  ferae  naturae  as  res  nullius,  which  became  the 
property  of  the  first  occupant.^s  By  the  common  law  of  p:ng- 
land  there  is  no  private  right  of  property  in  Avild  animals 
while  alive ;  but  there  are  exclusive  rights  to  appropriate  them 
by  reduction  to  possession  either  ratio ne  soli  (when  such  right 
belongs  to  the  owner  of  the  land  where  the  animals  happen 


-«  The  constitutional  status  of  nat- 
ural waters  has  been  made  the 
subject  of  judicial  discussion  in 
Wisconsin  (Eossmiller  v.  State,  114 
Wis.  169,  89  N.  W.  839,  58  L.  K. 
A.  93),  A  statute  imposed  a  tax 
of  ten  cents  per  ton  upon  all  ice 
cut  from  any  meandered  lake  of 
the  state  and  shipped  out  of  the 
state.  The  court  holds  that  ice 
formed  on  public  waters,  as  the 
water  itself  (Willow  River  Club  v. 
Wade,  100  Wis.  86),  is  held  by  the 
state  as  trustee  for  the  public  and 
not  in  a  proprietary  capacity,  and 
that  the  legislature  cannot  treat  it 
as  the  beneficial  property  of  the 
state.  There  is  thus  an  indestructi- 
ble common  right  to  take  ice  and 
since  it  may  be  taken  for  the  pur- 
pose of  selling,  as  well  as  for  do- 
mestic and  personal  use,  the  state 
cannot  claim  compensation  from 
those  who  desire  to  sell  it.  The  tax 
is  therefore  unconstitutional.  The 
court  admits  that  the  enjoyment  of 
the  common  right  is  subject  to  po- 
lice regulation. — It  is  difficult  to  see 
why  the  common  and   natural   right 


of  occupancy  should  be  above  tiie 
power  of  the  law.  If  the  natural 
waters,  and  ice,— and  the  same  is 
true  of  game  and  fish— are  the 
common  heritage  of  all  the  people, 
why  should  they  not  be  made  a 
source  of  revenue  for  the  people? 
If  only  a  limited  number  have  ac- 
cess to  this  heritage,  they  enjoy  an 
advantage  from  which  others  are 
excluded,  and  a  jKiymcnt  to  the 
state  for  what  is  appropriated  is  a 
method  of  equalising  benefits,  if  the 
difference  between  the  payment  and 
the  value  is  sufficient  to  compensate 
for  the  labor  expended  in  rcdi'cing 
the  commodity  into  possession  In 
holding  an  export  tax  to  be  jncon- 
stitutional,  the  court,  however,  give.s 
effect  to  what  seems  in  theory  a 
sound  principle,  namely,  that  when 
a  commodity  is  recognised  as  an 
article  of  commerce,  it  should  be 
such  for  purposes  of  interstate  a.s 
well  as  of  domestic  commerce.  See, 
however,  Geer  v.  Connecticut,  161 
U.  S.  519. 

-•TSee,  also,  §  035.  ti3(i,  71'_\ 

-islnst.  Bk.  II,  Tit  I.-  1. 


442  QUALIFIED  PKOPEKTY.  §  418 

to  be;,  or  ratiuiic  privilegii,  by  royal  prerogative  or  grant  or 
by     prescription,     in     forests,     chases.     parli;s,     warrens     and 
manors.-'*     The  rights  ratione  pvivilegii  have  never  had  any 
existence  in  America,  and  early  legislation^"  and  perhaps  cus- 
tom=^^  has  in  some  cases  extended  the  common  right  of  hunt- 
ing to  all  wild  and  nninclosed  lands.     As  a  general  rule  the 
right  to  hunt  exists  in  this  country  ratione  soli,  or  by  express 
or  implied  license  from  the  owner  of  the  soil.    The  right  to  lish. 
in  England,  is  in  tidal  or  navigable  waters  a  common  public 
right, ^-  Mobile  in  non-tidal  or  non-navigable  waters  it  belongs 
presumptively  to  the  owner  of  the  adjacent  soil.^^     With  re- 
gard to  tidal  waters  and  non-navigable  waters    the    rule    in 
America  is  the  same  as  in  England  ;^^  where  non-tidal  navigabU' 
waters  are  held  to  be  in  public  ownership,  the  right  to  fish  is 
likewise  common,-^^  while  there  is  some  difference  of  opinion 
and  perhaps  uncertainty  with  regard  to  non-tidal  navigable 
waters  in  states  where  they  are  held  to  be  privately  owned. 
.Massachusetts  and  New  Jci-sey  hold  tliat  the  right  to  fish  in 
these  waters  belongs  to  the  adjoining  owner,  and  that  others 
can  fish  there  by  license  only,-'"  while  in  Wisconsin  a  public 
right  to  fish  is  recognised  either  on  the  theory  that  the  right 
of  navigation  carries  with  it  the  right  of  fishing,  or  on   the 
theory  Ili;it    llir   fiparian  title  to  tin-  llavi^al)l(■  sti-cani  is  sub- 
ject to  all   |iublic  rights  including  the  right  to   lish.  the  state 
being  nnablc  to  surrender  these  pnl)li('  ri^lits  to  individuals.-'' 
From  an   early  period   legislation  has   been  enacted   in  the 
])ublic  interest,  limiting  the  right  to  take  game  and  (isli.     The 
earliest  statute  of  this  character  seems  to  have  been  one  for 
the   jireservation   of  salmon,   passed    in    11285.-*^      The   statutes 
for  the  preservation  of  fish  are  cspi'ci.illy  nnmei-ous,  and  occur 
in   almost  every  reign.     From  the  time  oi  Henry  VIII  there 

-"  Eiicycloi)e<liii   of   Laws   of    l')nj;-  ••'('criluiy   Digest,  Tilli-   I'isli,  §  'A. 

laml,    Title    Ciame    Tiaws;    liladcs    v.  :'b  Carson  v.  Blazer,  L'  Biiiri.   (Pa.) 

Jliygs,   11    TI.  L.  C.  6L'l.  475. 

•"•See   §   518,  infra.  •'•' ('(iniiiHiiiwcnll  li      \.      ('li;i|iiii,      5 

••'»  McConico    v.    Sinjrhitoii,    -    Mills  i'i.k.    I'.i'.i;    All)ri>j;lit    v.   ('(.rtri^rlit,  (54 

(8.   C.)    244;    HrouKlitoii    v.    Sin^rli-  N.  J.  L.  330,  4s   L.   R.   A.  (iKi.     Sec. 

ton,  2  Nott  &   McCord    (S.   ('.)    XW.  also  Wasliinjjtdn    lie  Co.  v.  Slmrtall, 

rizllalt-  .If  Jure  MariH,  di.  4.  101    Ml.  4(i. 

■■'•''  Hale     <le    .lure     .MariH,     <li.     I  ;  •'  Willnw     liivcr     <"'liil>     v.     Waile, 

Blount    V.    La.var.l.    lH!tl,   'J   Cli.   fisl.  10(1  Wis.  MC,.  42  !i.   \{.  A.  :!()."). 
note.  •■"•  13  10(1.  1,  c.  47. 


{^  419  GAME  AND  FlSlI.  443 

occurs  also   logislalioii   lor   tin-   prfscrvalion   ol'   •_miii<\    roii.i.l. 
ding  its  taking  at  certain  seasons  or  in  certain  ways. 

Similar  legislation  has  existed  in  America  since  the  colonial 
times.  An  act  of  ^Massachusetts  of  1(J'J8  establishes  a  closf 
time  for  deer,  and  makes  the  possession  of  the  skin  sulTlicienl 
evidence  for  conviction.  A  similar  statute  was  pasi:ed  for 
XcAv  York  in  1705.  At  present  elaborate  laws  exist  every- 
where, establishing  close  seasons  during  which  the  hunting. 
killing,  carrj'ing,  selling,  and  even  the  possession  of  killfd 
game  and  fish  is  made  unlawful,  prohibiting  certain  ihodes  of 
hunting  and  fishing  altogether,  and  foi-bidding  the  pollution 
of  waters  by  wdiich  fish  are  apt  to  be  destroyed,^"  or  tin* 
obstruction  of  waters  by  wdiich  their  free  passage  is  pre- 
vented.4°  « 

§  419.  Constitutionality.  — The  constitutionality  of  game  and 
lish  law^s  may  be  supported  upon  several  distinct  and  partly 
concurrent  theories. 

The  one  most  commonly  relied  upon  is  that  game  and  lish 
are  owned  by  the  sovereign  state  in  trust  for  the  people;  and 
while  a  right  of  occupancy  is  recognised  with  regard  to  them, 
this  is  in  the  nature  of  a  license  or  privilege,  which  the  state 
may  circumscribe  as  it  sees  fit,  or  at  all  events,  in  a  very 
much  more  incisive  manner  than  other  property  rights  which 
under  the  constitution  are  purely  private.^ ^  The  power  of 
the  state  may  be  exercised  by  depriving  dead  game  of  the 
character  of  an  article  of  commerce,  so  by  forltidding  its 
consignment  through  a  connnon  carrier  to  a  connnission  mer- 
chant or  sale  market.-*-  The  power  of  the  state  extend.s  to  the 
protection  of  fish  and  game  on  private  property,  over  which 
they  may  pass  or  in  wdiich  they  may  transiently  dwell,  since 
such  temporary  and  accidental  control  does  not  give  absolute 

3oPeoplo    V.    Elk    Eiver    Co.,    107  "R.  A.  414. 

Cal.  214.  -Ji  Maguer   v.   People,   !i7    111.  3:10; 

40Cottrill  V.   Myrick,   12   Me.  222,  State    v.    Rodman,    58     Minn.    :«).H. 

1835.      See    as    to    requirement    to  59    N.    W.    1098;    E.x    i)arto    Maior. 

build    fishways    for    the    passage    of  103  Cal.  476,  37  Pac.  402. 

fish,       qualifying      previous      water  •»- State  v.   Chapel.   (54   Minn.   i:i(». 

grants,     Commissioners     on     Inland  (W   N.   W.   205;    American   Exp.  Co. 

Fisheries   v.    Holyoke   Water   Power  v.    People,    133    111.    640.    24    N.    E. 

Co.,  104  Mass.  446;   Holvoke  Water  758,   23  Am.  St.   Kep.   641,   5>  T..    K. 

Co.  V.  Lyman,  15  Wall.  500;   Parker  A.   138;   People  v.   Van   Pell,  9o   N. 

V.  People,  111  111.  581;  State  ex  rel.  W.  424. 
Eemley  v.  :Meek,  112  la.  338,  51  L. 


444  QUALIFIED  PKOPEETY.  §  419 

property ;  and  it  is~sufficient  that  waters  in  private  ownership 
are  connected  with  other  waters  at  certain  periods  at  which 
fish  may  pass  into  them.^^ 

Where  fish  are  bred  or  raised  by  the  owner,  the  state  can 
claim  no  proprietary  interest;  if  then  the  state  may  forbid 
the  killing  of  such  fish  during  certain  seasons,-*-*  we  must  fall 
back  on  one  of  two  grounds:  that  the  state  has  the  right  to 
enforce  measures  for  the  preservation  of  a  valuable  food 
supply— a  ground  strongly  relied  upon  in  support  of  fish 
or  game  laws  in  general,-*^— or  that  an  owner  may  be  required 
to  conform  to  a  regulation  of  his  right  of  property  which  is 
necessary  to  prevent  or  make  more  difficult  evasions  of  the 
law  by  others ;  and  this  latter  theory  may  also  be  used  in  sup- 
port of  the  prohibition  of  the  sale  of  game  imported  from 
other  states,  which  will  be  referred  to  presently. 

The  protection  of  song  or  other  wild  birds  from  slaughter-*^ 
may  be  placed  upon  the  ground— likewise  available  for  game 
and  fish— that  living  creatures  may  be  saved  by  the  power 
of  the  state  from  reckless  or  wasteful  sacrifice.  Probably,  how- 
ever, an  owner  cannot  be  forbidden  to  destroy  a  noxious  ani- 
mal when  necessary  for  the  protection  of  his  property .•»' 

The  question  whether  game  and  fish  laws  proceed  upon  the 
theory  of  sovereign  ownership  or  of  restraint  of  private  prop- 
erty for  the  public  welfare,  would  Ixcouic  important,  if  slates 
like  Massachusetts  or  New  Jersey  should  undertake  to  Ihi-ow 
the  right  to  fish  in  non-tidal  navigable  waters  open  to  the 
|.iilili<-,  I  111-  i)r('vailing  doctrine  in  these  states  conceding  this 
riglit  1o  till'  i-ip;ii'l;iii  owner."'  If  llie  right  of  sevei";il  fishery 
is  a  vested  right  of  property,''  it  is  still  subject  to  the  police 
powi'i-  wliieli  )u:\y  forbid  the  taking-  at  certain  seasons  and  pre- 

•  ■!  iVoplu    V.     Klk     Hivt-r    Co.,     107  •'  Al.lii.li    v.     Wri^^lit,    53    iX.     11. 

('ill,     L'14;     Peoi)lo     v.     Collison,     85  398. 

Mi.li.    1(15,  48  N.  W.  :J1»'J;   Peopli!  v.  •««  fom,    v.    Chapin,    5    Pick.    199; 

Hri<l),M's,    14'J    III.    30,    31    X.    K.    115,  Allni^'lit    v.    ( Virtritrl,!,    (M    \.    A.    Tn 

1(>    I..    \{.   A.   GH4;    Comni<.ii\\f:iltli    v.  33(i,    IS   L.   ]{.  A.  (il(i. 
LiMik,    ins    MiiHS,   452.  "'.i 'riicrc   is  :iiil  limil  y    Id   llif  clVi'cf 

"    ('omitionwoiiltli    V.    (lillMTt,     !(>()  tliiit.    tlic    owner    dI'    m     ]iriv:itc    (isli- 

MasH.   1')".  '■•'>'  ^^-'e^  rcjfjn-ilcd  jit   ruimniui    l;iw  as 

•«'•  PliolpH   V.    K.-icf-y,   (HI    N.    \.    Ill;  liaviiijr  prn|M'ity  in   tlic  (isli.     See  15 

I'r.oph'   V.   TiriilKOH,   142   III.   30.  .Inii.lir.i!    K'cvicw.    p.    151. 

\i'\\      ^'ll|•l<      I'ori"*!,      I''isli     all'! 
(ijuiif    Law,    8    3.1. 


§  420  ClAxME  AND  FISH.  445 

scribe  strict  regulations  in  the  interest  oi"  tlie  pn-scrvji^ion 
of  a  valuable  food  supply;  l)ut  the  ri<r!it  cannot  be  transftM-n-d 
from  the  individual  to  the  public  at  large  excei)t  under  the 
right  of  eminent  domain  and  therefore  upon  payment  of  com- 
pensation.'''" If,  however,  the  fish  belong  to  the  state  and 
the  private  owner  has  merely  a  license  to  take  it.  then  this 
license,  not  being  a  vested  right,  is  revocable,  and  may  be 
transferred  to  the  public  at  large.  Since  the  latter  is  the  pre- 
vailing theory,  the  change,  it  seems,  can  be  effected  without 
compensation. 

v5  420.     Game  and  fish  laws  and  freedom  of  commerce."*'  — 

'i'lie  ({uestion  has  also  arisen,  how  far  the  game  laws  can  be  up- 
held as  against  the  freedom  of  interstate  commerce.  A  statute 
of  Connecticut  provided:  "No  person  shall  at  any  time  kill 
any  woodcock  *  *  *  for  the  i)urpose  of  conveying  the 
same  beyond  the  limits  of  the  state;  or  shall  transport,  or 
have  in  possession,  with  intention  to  procure  the  transporta- 
tion beyond  said  limits,  of  any  such  birds  within  this  state." 
The  Supreme  Court  of  the  United  States  upheld  llie  constitu- 
tionality of  this  statute  in  a  case,  where  the  bird  had  been 
lawfully  killed,  and  only  its  unlawful  possession  for  the  piu-- 
pose  of  transportation  out  of  the  state  was  charged.'  It  was 
thus  recognised  that  a  state  has  power  to  regulate  the  killing 
of  game  within  her  borders  so  as  to  confine  its  use  to  the  limits 
of  the  state  and  forbid  its  transportation  outside  of  the  state. 
The  state  may  follow  property  in  game  into  whatever  hands 
it  may  come  to  with  the  conditions  and  restrictions  deemed 
necessary  for  the  public  interest.  From  this  decision  it  nuist 
of  course  follow  that  transportation  out  of  the  state  may  be 
made  unlawful,  if  the  prohibition  is  simply  part  of  the  general 
l)rohibition  against  killing  or  possession  within  the  state.  But 
the  latter  proposition,  without  which  game  laws  would  be  in- 
effectual, does  not  necessarily  require  assent  to  .the  doctrine 
laid  down  in  Geer  v.  Connecticut.  Upon  principle,  it  must 
be  extremely  doubtful  whether  a  state  may  allow  game  to 
become  property  for  commerce  within  the  state,  but  not  fnr 
commerce  among  the  states,  whether,  in  other  words,  a  state. 

fi"  See  §  511,  512,  infra.  519.     Under  the  sanction  of  this  »lo- 

fii  As     to     discriminatiou     against  cision   nearly  all  states  have  phiced 

non-residents  see  §   712,  infra.  restrictions  upon   the  exportation  of 

1  Geer    v.    Connecticut,    161    U.    S.  game. 


446  QUALIFIED  PKOPEKTY.  §  421 

Avlien  recoguisiug  property  for  every  other  purpose,  may  an- 
nex a  condition  the  sole  purpose  of  which  is  to  exclude  a  fed- 
eral right.2  Two  justices  dissented  from  the  decision  of  the 
court,  Avhile  two  others  took  no  part  in  it/^ 

Another  question  is  whether  the  prohibition  against  sale  or 
possession  applies  to  game  or  fish  imported  from  outside  of 
the  state.  The  statute  was  so  applied  in  Illinois,-*  and  Cal- 
ifornia,^  while  the  Court  of  Appeals  of  New  York  has  declared 
such  application  to  be  unconstitutional,  as  impairing  the  free- 
dom of  commerce."  This  case  differs  from  the  Connecticut 
case,  in  that  the  law  here  acts  not  merely  upon  commerce, 
but  upon  things  over  which  the  state  can  claim  no  special 
proprietary  rights,  and  the  preservation  of  which  serves  no 
interest  of  the  state's.  It  may,  however,  be  urged  that  such 
a  prohibition  may  be  an  effective  means  of  preventing  evasions 
of  the  law  prohibiting  the  killing  of  game  or  fish  within  the 
state.  It  has  also  been  held  that  the  power  of  the  state  over 
fish  is  not  affected  by  the  fact  that  the  waters  over  which  the 
state  has  territorial  jurisdiction  are  also  navigable  waters  of 
the  United  States.' 

§  421.  Property  in  dogs.— The  property  in  dogs  is  regarded 
as  not  entitled  to  the  same  protection  as  property  in  other 
domestic  animals.  At  common  law,  while  an  action  would  lie 
for  their  conversion  or  injury,**  they  were  not  the  subject  of 
larceny.  "They  have  no  intrinsic  value,  by  which  we  under- 
stand a  value  common  to  all  dogs  as  such,  and  independent  of 

-The  Supreme  Court  says  in  sup-  will  not  justify  rostriclions  upon  ex- 
port of  its  position  that  the  common  port,  so  long  as  domestic  eommerco 
ownership  imports  the  right  to  keep  is  allowed,  has  been'held  in  Indiana 
the  property,  if  the  sovereign  so  witli  regard  to  natural  gas.  State 
fhooses,  always  within  its  jurisdic-  v.  Indiana  &  Ohio  Oil  Oas  Co.,  120 
tion  for  every  purpose.  "The  hid.  '>7'},  U  L.  K.  A.  57!). 
qualification  which  forbids  its  re-  «  Merrilt  v.  People,  Ki'.i  111.  1'18, 
nioval  from  the  state  necessarily  en-  48  N.  E.  325. 

tered     into     and     formed     part     of  ••  Ex    parte    Maier,    103    Cal.    470, 

I  very     transaction     on     the    subject,  37  I'ac.  402,  42  Am.  St.  Kep.   120. 
and   deprived   the  mere  sale  and  ex-  <>  I'eople   v.    I'.ull'.iln    ImsIi   <'<>.,    Hit 

change    of    these    articles    of    tliat  \.  V^•J>.^,  HH  N.  E.  34. 
clement  of  freedom  of  contract  and  ^  Manchesler      v.       Massachusetts, 

(if    full    owniTsliip    which    is    an    es-  l.''.'.'  V.  S.  210. 
sential  attribute  of  commerce."  •  Clininl.ers   \.    Warkliouse,   3  Salk. 

:i  That  the  interest  whicli  the  state  1  JO. 
has  in   preserving   valuable  resources 


§422  WAST  10.  J47 

the  particular  breed  or  individual.     *     *     *     As  it   is  prac- 
tically impossible  by  statute  to  distiiifruisli  between  the  dilVer- 
ent  breeds,  or  between  the  valuable  and  the  woi-thless,  such 
legislation  as  has  been  enacted  upon  the  subject,  thoutrh  nom- 
inally  including  the   whole   canine    race,    is    really    directed 
against  the   latter  class,   and    is  based    upon   the   theory  that 
the  owner  of  a  really  valuable  dog  will   Feel  sufficient  interest 
in  him  to  comply  with  any  reasonable  regulations  designated 
to  distinguish  him  from  the  common  herd.     Acting  upon  the 
])rinciple  that  there  is  but  a  qualified  proi)erty  in  them,  and 
that,   while   private   interests   require   that   the   valuable   ones 
shall  be  protected,  public  interests  demand  that  the  worthless 
shall  be  exterminated,  they  have,  from  time  immemorial,  been 
considered  as  holding  their  lives  at  the  will  of  the  legislature, 
and  properly  falling  within  the  police  powers  of  the  several 
states.  "'^     Upon  this  ground  it  is  held   that  the  keeping  of 
dogs  may  be  conditioned  upon  a  license,  and  upon  compliance 
with  other  strict  regulations  intended  to  prevent  them  from 
becoming  a  nuisance;  and  non-compliance  Avith   such  regula- 
tions may  be  foUoAved  b}^  the  entire  withdrawal  of  the  legal 
protection  of  the  property,  so  that  they  may  be  killed  without 
further  legal  process,  and  without  giving  to  the  owner  a  right 
of  action  for  damages.^'' 

WASTE  OF  NATURAL  WEALTH.  §§  4-'ii-423. 

§  422.  Game  and  fish— Natural  gas.— "While  the  constitu- 
tionality of  the  game  and  fish  laws  is  maintained  on  the  ground 
that  the  state  is  the  real  and  ultimate  proprietor  of  animals 
ferae  naturae,  it  is  also  recognised  that  in  their  enactment  the 
state  exercises  a  police  poAver  for  the  public  welfare  in  i)re- 
serving  a  species  of  natural  Avealth  which  without  si)ecial 
protection  would  be  liable  to  extermination.  "The  ownership 
of  wild  animals,  so  far  as  they  are  capable  of  ownership,  is 
in  the  state,  not  as  proprietor   (beneficial  owner V  but   in   its 

9  Sentell   v.   New   Orleans,   &(-.,   R.  lyne,  8  Utah,   245,  30  Pac.   760.   16 

E.  Co.,  166  U.  S.  698.  L.    R.    A.    689.      Contra:     Lynn    v. 

loHaller    v.    Sheridan,      27     Ind.  State,  33  Tox.  Cr.  153,  25  S.  W.  779. 

494;  Hagerstown  v.  Witmer,  86  Md.  bnt  there  the  ordinance  provided  a 

293,  39  L.  R.  A.  649;   Leach  v.  El-  method  of  killing   (shooting  unmuz- 

woo'd,  3  111.  App.  453;   State  v.  To-  zled  dogs  in  the  streets),  which  was 

peka,  36  Kans.  76,  12  Pac.  310,  59  contrary  to  the  general   law   of  the 

Am.    Rep.    529;    Jenkins    v.   Ballan-  state. 


448  QUALIFIED  PKOPERTY.  §  422 

sovereign  capacity  as  the  representative  and  for  the  benefit 
of  all  its  people  in  common.  The  preservation  of  such  animals 
as  are  adapted  to  consumption  as  food  or  to  any  other  useful 
purpose  is  a  matter  of  public  interest;  and  it  is  within  the 
police  power  of  the  state  as  the  representative  of  the  people 
*  *  *  to  enact  such  laws  as  will  best  preserve  such  game 
and  secure  its  beneficial  use  in  the  future  to  the  citizens.  "^^ 
Where  game  and  fish  is  imported,  or  bred  through  the  expendi- 
ture of  private  capital,  restrictive  laws  can  be  justified  only 
upon  this  ground  of  the  police  power.^- 

The  question  to  what  extent  property  which  is  liable  to  ex- 
termination may  be  protected  by  restraints  upon  the  owner's 
power  of  disposition,  has  otherwise  called  for  little  discussion. 
Two  Indiana  cases  have  maintained  the  constitutionality  of 
legislation,  by  which  the  owner  of  land  on  which  there 
are  natural  gas  wells,  is  forbidden  to  use  them  in  a  waste- 
ful manner,  by  burning  "flambeau''  lights  or  by  permit- 
ting a  flow  of  gas  to  escape  into  the  open  air.i=^  The  court 
speaks  of  natural  gas  as  a  mineral  ferae  naturae,^^  and  the 
first  decision  relies  largely  upon  the  analogy  of  game  and 
fish  laws;  the  theory  being  that  the  title  to  natural  gas  does 
not  vest  in  any  private  OAvner  until  it  is  reduced  to  actual 
possession.  But  the  court  also  argues  that  after  the  gas 
has  been  drawn  into  wells  or  tanks,  its  waste  may  be  treated 
as  a  nuisance.  "The  object  and  policy  of  that  inhibition  is 
to  prevent,  if  possible,  the  exhaustion  of  the  storehouse  of 
nature,  wherein  is  deposited  an  element  of  nature  that  min- 
isters *  *  *  to  the  comfort,  happiness  and  W(^ll-being  of 
society.  *  *  *  It  |the  company]  may  use  its  wells  to  pro- 
duce gas  for  a  legitimate  use,  and  must  so  use  them  as  not 
to  injure  others  or  the  community  at  large.  *  *  *  TIk^ 
injury— the  «'xhaustion  of  natural  gas— is  not  only  an  irrc])- 
aral)lc  our,  hut  it  will  be  a  great  jjublic  calamity."  The 
Supreme  Court  ol'  the  United  States,  in  aflii'niing  tiic  (Iccision 
in  tlic  case  of  the  Ohio  (»il  Company  ;is  not  violating  the  Four- 
teenth .\iiiiii(|iii('nt,  adopts  a  somewhat  difi'cniil  icisonini:.- 
from  Unit  rollowiMJ  by  tln'  Indiaiiii  court,     (i.is  :iii(l  oil  jii-c  rc- 

11  Stale  V.  Ifodnian,  M  Minn,  393.  Co.,   IfjO   Tnd.    21,   49   N.    E.   809,   47 

12  Com.  V.  (iillMTt,   1(50   MuHH.    IT)?.  ^,.  K.  A.  627. 

13  TownHPnrl  v.  Htafc,  147  Itnl.  ' '  Sec  WoHtiiKurhiMd  vVrc  C-ih  Com- 
024,  47   ,N'.   K.    19;   State  v.  Oliin  Oil  pjiiiy   v.   |)c  Will,    I  .".(i   I';i.  St.  •_':'.;">. 


^  423  FOREST  I'KESKKVATION.  44y 

{?arded  as  substances,  individual  ownership  in  which  is  pcT- 
fected  only  by  appropriation  and  reduction  to  possessif)n. 
Until  such  appropriation,  and  w'hile  occupying?  their  natural 
reservoirs  beneath  the  surface  of  the  earth,  ^as  and  oil  belong 
in  common  to  all  the  surface  owners,  passin^^  as  they  do  freely 
and  without  control  from  the  domain  of  one  to  that  of  th<' 
other.  There  is  thus  a  common  fund  and  the  legislative 
power  is  exerted  "for  the  purpose  of  protecting  all  the  col- 
lective owners,  by  securing  a  just  distribution,  to  arise  from 
the  enjoyment,  by  them,  of  their  privilege  to  reduce  to  pos- 
session, and  to  reach  the  like  end  by  preventing  waste.'  '•'• 
The  question  whether  the  state  may  prevent  the  waste  of  ])roj)- 
erty,  w'hich  has  become  completely  vested  in  an  individual. 
is  thus  left  unanswered.  The  view  of  the  federal  supreme 
court  has  since  been  adopted  in  Indiana.^  "^ 

§  423.  Forest  preservation.— In  a  country  which  has  a 
great  abundance  of  natural  resources,  legislation  to  prevent 
their  wasteful  and  unscientific  exploitation  is  apt  to  be  little 
needed,  and  is  generally  contrary  to  public  sentiment.  But 
even  in  the  older  countries,  such  legislation  seems  to  be  avoided. 
In  the  sixteenth  century,  a  number  of  statutes  were  enacted 
in  England  for  the  preservation  of  forests,  forbidding  the  fell- 
ing of  timber  to  be  made  into  coal,  and  restraining  the  erection 
of  iron  mills  to  prevent  the  excessive  consumption  of  fuel.'' 
At  present  there  is  no  legislation  regarding  forestry  in  Eng- 
land. In  France  and  in  Prussia,  the  policy  of  preserving 
forests  as  an  element  of  national  wealth  by  controlling  the 
management  of  private  property  has  been  abandoned;  as  the 
ownership  of  forests  is  largely  vested  in  the  state  and  the 
communes,  the  same  object  can  be  accomplished  by  the  exer- 
cise of  proprietary  powers  on  the  part  of  the  state.  In  this 
country  it  would  probably  be  a  strong  consideration  against 
legislation  prescribing  the  observance  of  principles  of  forestry 
in  the  management  of  private  forests,  that  there  is  no  analogy 
or  precedent  for  it,  unless  it  could  be  shown  that  the  supply 
of  forest  land  was  limited  and  in  danger  of  exhaustion,  and 

15  Ohio  Oil  Co.  V.  Tndiana.  177  U.      v.  Indiana  Gas  &  Oil  Co.,   If..')   In-l. 

g    190.  461,  57  N.  E.  912.    See  §  425,  infra. 

10  Manufacturers'   Gas   &   Oil    Co.  i' 35    H.    VII,   c.    17;    1    Eliz.,   c. 

15;  23  Eliz.,  c.  5;  27  Eliz.,  c.  ll>. 

29 


450  QUALIFIED  PKOl'KinV.  §  424 

that  the  regulation  was  not  destrnetive  of  the   value  of  the 
land  to  the  OAvner. 

Restrictive  legislation  for  the  preservation  of  forests,  where 
the  denudation  of  the  soil  endangers  neighboring  land  or  the 
eoimtry  at  large,  exists  both  in  France  and  in  (Jermany.  The 
state  requires  the  maintenance  of  forests,  where  they  are 
necessary  for  the  protection  of  mountain  sides  or  dimes,  or 
for  the  existence  of  springs  and  streams,  or  for  the  prevention 
of  erosion  or  floods,  or  for  the  publi9  health.  The  Prussian 
law  adds  that  the  restraint  upon  the  owner  must  not  be  dis- 
proportionate to  the  public  danger  to  be  averted. ^'^  Similar 
legislation  in  this  country  would,  it  seems,  be  justified  upon  the 
principle  laid  down  in  Commonwealth  v.  Tewksbury,i»  where 
the  owners  of  shorelands  constituting  a  natural  barrier  against 
the  inroads  of  the  sea  were  prohibited  from  removing  gravel 
and  stone.  The  two  cases  would  seem  to  be  precisely  analogous. 
Forests  which  are  essential  to  the  physical  protection  of  the 
country  may  be  regarded  as  subject  to  a  natural  easement  for 
that  purpose,  and  the  person  who  ne((uires  them  takes  them 
cum  OH  ere. 

KESTliK'TIONS   UPON    PROPERTY  IN  THE  INTEREST  OF  OTHER 

OWNERS.     §§424-427. 

§424.  Easement  of  support.  — The  nature  of  real  estate  as 
a  subject  of  i)ropei-ty  in.ikes  it  impossible  that  the  ownership 
of  it  should  be  as  absolute  as  that  of  many  kinds  of  per- 
sonal property.  The  eiijoynuMit  of  land  is  in  many  respects  de- 
pendent upon  the  condition  of  otlu-r  ami  especially  neigh- 
boring estates.  The  eomjnop  law  recognises  in  consequence 
of  this  depeiKleiiee  certain  natuial  rights  which  land  owners 
have  against  eiidi  utlnM-.  i-ehiting  to  llie  pui'ity  oi"  the  air,  to 
later;il  and  snhjac'nl  sii|)|kii'I,  and  to  the  henefit  »»!'  natui'al 
waters.  The  interests  which  Jnslily  the  existence  of  these 
er)ninion  hiw  rights  must  also  justify  tli<'ir  modification  by 
the  legislature,  if  neeessai-y  for  the  purpose  of  aeeomi)lishing 
more  perfect  just  ice.  These  interests  are  indeed  mofc  private 
than  pidilic,  and  it  may  thererore  be  questioned  whcllier  mod- 
ifying stat\iles  fall  under  Hie  |)oli('e  power,  and  shouhl  not 
rather  be  ascribed   to  Hie  power  of  i-ivil   legislation.     But   the 

fLnw  of  July  6,  187.'),  "'11  Mete.  5.');  §   too,  supra. 


§425  NEJGHBURS'  KUJHTS.  4;,! 

elassification  of  such  statutes  is  of  minor  coiiscipifiu'.-  as  Um'j 
as  their  vaJidity  is  recognised. 

There  is  comparatively  litth'  legishUion  upon  this  sulij.-ct. 
While  the  common  hnv  confines  the  duty  of  mutual  support  to 
soil  in  its  natural  state,  and  recognises  with  regard  to  l)uild- 
ings  merely  a  duty  of  care  in  excavating  the  adjacent  soil-" 
or  perhaps  a  duty  to  give  notice  to  the  owner  of  the  building,2' 
a  statute  applying  to  the  City  of  New  York  provides  that 
where  a  wall  is  endangered  by  excavations  ui)on  the  neighbor- 
ing lot  going  to  a  depth  of  more  than  ten  feet  below  tho  curb, 
the  person  causing  the  excavation  to  be  made,  if  afforded 
the  necessary  license  to  enter  the  adjoining  land  shall  at  his 
own  expense  preserve  such  wall  from  in  jury  ,-2  — a  reasonable 
regulation  the  validity  of  which  has  not  been  questioned. 

§  425.  Natural  waters.— The  correlative  rights  and  duties 
of  riparian  proprietors  have  to  some  extent  been  affected  by 
the  mill  acts  which  have  been  considered  before, 23  but  on  the 
whole  the  common  law  principle,  that  the  right  to  impair 
or  affect  the  quantity  or  quality  of  watei-  or  the  strength  of 
the  current  must  be  determined  by  what  is  under  all  the  cir- 
cumstances a  reasonable  use,  has  been  left  to  judicial  applica- 
tion and  enforcement,-^  and  has  not  been  made,  as  well  it 
might  be,  the  subject  of  statutory  and  administrative  regu- 
lation. The  determination  of  priorities  and  amounts  of 
appropriation  of  natural  waters  under  the  water  act  of  Wyo- 
ming's seems,  however,  practically  to  amount  to  such  regula- 
tion, and  has  in  principle  been  upheld  by  the  supreme  court 
of  that  state,  with  respect  to  rights  acquired  prior  as  well 
as  subsequent  to  the  act  and  the  constitution  of  the  state.-" 

In  this  connection  a  decision  of  the  Supreme  Court  of  Wis- 

20  Walters  v.  Pfeil,  Moo.  &  Mai.  -•*  Pitts  v.  Lancaster  Mills.  Hi 
362;  Moody  v.  McClelland,  39  Ala.  Mete.  156;  Thurber  v.  Martin,  2 
45,  84  Am.  Dec.  770;  Charless  v.  Gray,  394;  Snow  v.  Parsons,  28  Vt. 
RanMn,   22   Mo.   566;    66   Am.   Dee.  459. 

642;    Shrieve   v.   Stokes,    8   B.    Mon.  25  Laws    1890-91,    Chapter    8,    es- 

(47   Ky.)    453,   48   Am.   Dec.  401.  peeially  See.  20,  24,  25,  26;  Revised 

21  Schultz  V.  Byers,  53  N.  .T.  Law,  Statutes  1899,  Sec.  867,  871,  872, 
442,  26  Am.  St.  Eep.  435.  873. 

22  N.  Y.  Laws  1882,  Chapter  410,  26  Farm  Investment  Company  v. 
Sec.  474;  and  see  also  Jones,  Ease-  Carpenter,  9  Wyo.  110.  61  Pac.  258. 
ments.  Sec.  587.  50  L.  H.  A.  747. 

23  §§  410-413. 


452  QUALIFIED  PEOPEKTY.  ^  42G 

consin  should  be  noticed.  A  law  of  that  state-"  provided  that 
"any  person  who  shall  needlessly  allow  or  permit  any  artesian 
well  owned  or  operated  by  him  to  discharge  greater  quantities 
of  water  than  is  reasonably  necessary  for  the  use  of  such 
person,  so  as  to  materially'  diminish  the  flow  of  water  in  any 
other  artesian  well  in  the  same  vicinit.y,  shall  be  liable  for  all 
damages  which  the  owner  of  any  such  other  well  may  sus- 
tain." This  act  was  declared  unconstitutional  on  the  ground 
that  percolating  waters  are  the  absolute  property  of  the  owner 
of  the  soil,  and  that  the  limitation  attempted  to  be  imposed 
upon  the  owner  by  the  act  not  being  dictated  by  any  public 
interest  does  not  fall  within  the  police  power.^s  This,  it 
is  submitted,  is  an  unduly  narrow  view  of  the  powers  of 
the  state.  True,  it  luis  hei-u  held  that  underground  waters 
flowing  in  no  definite  channel  may  be  dealt  with  by  the  owner 
of  the  soil  without  regard  to  the  interests  of  other  owners 
whose  water  supply  he  may  intercept  ;-^  but  this  right  does  not 
go  to  the  extent  of  draining  water  from  definite  watercourses,^" 
and  there  is  authority  for  the  doctrine  that  the  interception 
of  underground  waters  is  justified  only  by  the  reasonable  use 
of  the  land.3^  If  so,  the  right  ought  to  be  subject  to  a  legisla- 
tive determination  of  the  consequences  of  an  unreasonable 
use,  and  the  legislation  of  Wisconsin  does  not  appear  to  have 
exceeded  this  scope.  It  ought  therefore  to  have  been  sus- 
tained as  legitimate  exercise  of  legislative  power.  It  is  not 
easy  to  understand  why  the  decisions  in  the  gas  and  oil  cases,-^- 
which  seem  to  be  closely  analogous,  should  have  been  rejected 
by  the  court  as  inapplicable  to  percolating  waters. 

^  426.  Malicious  erections  and  private  nuisances.— Statutes 
I)rohibiting  malicious  erections  may  be  referred  to  this  branch 
of  legislative  i)Ower.  Unless  the  power  to  abuse  property 
rights  is  in('lnd('<l  in  the  constitutional  j)rotection  of  j)roperty, 
a   rf'strainl    upon   llic  malicious  exercise  of  a  right  should  be 


-T  Laws    I'.tOl,   CliaptiT   M.")!.  "odrand   .liiiictinii   Canal   < '()iii|)aiiy 

2«nuber  V.   Mnrkcl   (Wis.),  94  N,  v    Slm^rar,    L.   R.   6   Ch.    App.   483; 

W.  354.  I'roprictora    of    Mills     \.     Rraintrcc 

'^"Afloii   V,    I'.liiiKlcll,    \'J.   .M.  &   W.  Wati'r   Supply   Company,    M!)    Mass. 

324;    ChaHcinorc    v.    Kiclianls,    7    Jl.  I'S;    Sniilli    v.   Brooklyn,    1(50   N.   Y. 

li.   C.   349;    CImtfieltl   v.    Wilson,   28  357,  54  N.  E.  787. 

Vt.  10.  -ii  Swett  V.  Ciitts,  50  N.  II.  439. 

3-'Spction   422,  supra. 


55  427  PEIVATE   NUiSANCEH.  453 

regarded  as  a  regulation  and  nut  as  an  impairment.  I'jjon 
this  principle  statutes  have  been  sustained  wliieli  forbid  the 
ei'ection  of  fences  exceeding  a  certain  hei«rl!l.  il'  tin-  purpose  is 
to  annoy  the  neighbor."^-' 

Upon  the  question  whether  tlie  law  may  riMjuire  positive 
measures  to  prevent  private  nuisances,  there  is  litth-  authority. 
Upon  principle  this  question  should  be  answered  in  the  artirma- 
tive.  The  case  of  Chicago  &  E.  R.  Co.  v.  Keith'*^  is  an 
authority  to  the  contrary.  A  statute  was  declared  unconsti- 
tutional which  required  railroad  companies  to  maintain  ditches 
or  drains  to  conduct  to  some  proper  outlet  water  accumulating 
along  the  sides  of  the  roadbed  from  the  construction  or  opera- 
tion of  such  road.  The  statute  authorised,  in  case  the  railroad 
neglected  to  construct  such  ditch,  its  construction  by  pul)lic 
authority,  and  the  assessment  of  the  cost  upon  the  railroad 
company.  It  was  held  that  no  proper  provision  for  notice  was 
made  in  connection  with  such  assessment,  an  objection, 
which,  if  well  founded,  w^as  sufficient  to  invalidate  the  act. 
The  court  also  held  that  the  power  of  assessment  can  be  en- 
forced only  in  the  interest  of  the  public,  and  not  to  redress  a 
private  wa-ong.  But  if  an  obligation  may  be  validly  imposed 
upon  the  owner  of  property  to  make  some  improvement,  the 
making  of  such  improvement  upon  his  default  by  public  au- 
thority at  his  expense  is  not  an  exercise  of  the  power  of  taxa- 
tion. The  question  must,  therefore,  be:  was  the  obligation 
validly  imposed?  And  it  seems  to  be  an  unduly  narrow  view 
of  the  legislative  power  to  hold  that  private  nuisances  can  b(> 
dealt  with  only  according  to  the  established  principles  of 
common  law  and  equity,  and  not  by  the  legislative  require- 
ment of  positive  measures  of  relief. 

§  427.  Private  roads.— Where  the  legislature  authorises  the 
laying  out  of  a  private  road  for  the  convenience  of  one  owner 
of  land  over  the  land  of  another,  Avithout  the  consent  of  the 
latter,  who  is  forced  to  yield  an  easenumt  in  retui-n  for  a 
compensation,  it  may  be  said  that  private  property  is  taken 

33Rideout    V.    Knox,     148     Mass.  Knickerbocker,  103  Cal.   Ill;    Kara- 

368;  Hunt  v.  Coggin,  66  N.  H.  140;  sek  v.  Peior.  L'2  Wash.  419.  .'".0  L.  H. 

Lord    V.    Langdon,    91    Me.    221,    ."^O  A.   345;    Horan   v.   Byrnes    (N.   H.), 

Atl.    552;    Gallagher    v.    Dodge,    48  54  Atl.  945. 

Conn.   387;    Western   Granite   Co.  v.  34  67  Oh.  279,  65  N.  E.  1020. 


454  QUALIFIED  PKOPEETT.  §  427 

for  private  use,  and  the  question  arises  whether  this  is  con- 
stitutional. 

The  courts  have  given  different  answers  to  this  question. 
In  Massachusetts  and  California  the  power  has  been  sustained 
on  the  ground  that  the  road  although  called  private  is  sub- 
ject to  public  use.35  Pennsylvania,  and  Michigan  hold  that 
clear  practical  necessity  justifies  the  exercise  of  the  power.3« 
In  Alabama,  Illinois,  Missouri,  New  York,  Oregon,  Tennessee, 
and  Wisconsin  the  power  has  been  denied  on  the  ground  that 
express  authority  for  taking  for  public  use  by  implication 
excludes  taking  for  private  use;^^  but  in  most  of  these  and 
some  other  states  (Alabama,  Colorado,  Illinois,  New  York, 
Michigan,  :\Iississippi,  Missouri,  New  York,  South  Carolina, 
AVashington,  Wyoming)  it  has  been  sanctioned  by  express 
constitutional  provision. 

The  constitution  of  Illinois  also  provides  for  the  construc- 
tion of  drains,  ditches  and  levees  for  agricultural,  sanitary, 
and   mining   purposes,   across   the    lands   of   others,^'^    and    a 
similar  clause  was  placed  in  the  New  York  constitution  of 
1894.    It  was  intimated  in  a  decision  of  the  Court  of  Appeals 
of  New  York    (but   all  other  justices  concurred   in  the   de- 
cision only  upon  another  ground),  that  this  constitutional  pro- 
as Denham    v.    Bristol,    108    Mass.     but  it  is  also  to  the  prejudice  of  the 
202 ;  Sherman  v.  Buiek,  32  Cal.  241 ;      public    need    that    land    should    lie 
Monterey    Co.    v.    Gushing,    83    Cal.     fresh  and  unoccupied." 
507.      A    similar    view    is    taken    of         so  Pocopson  Road.   16  Pa.  St.   15; 
switch    tracks,    or   spurs,    to    private     Ayres  v.  Richards,  38  Mich.  214,  but 
factories-    McGann    v.    People,    104     method    of    procedure    in    this    case 
111.  526    62  N.  E.  941,  also  Chicago     held  unconstitutional,  see  Schehr  v. 
&     N.     W.    R.     Co.     v.     Morehouse,     Detroit,  45  Mich.  626. 
112    Wis.    1.      The    duty    of   a    rail-  •'"  Sadler     v.     Langham,     34     Ala. 

road  company  to  maintain  a  cross-  311;  Nesbit  v.  Trumbo,  39  111.  110; 
ing  in  order  to  give  access  to  pii-  Dickey  v.  Tennison,  27  Mo.  373; 
vate  property  from  which  the  owner  Taylor  v.  Porter,  4  Tlill  140;  With- 
has  been  cut  off  by  the  road  (Mass.  am  v.  Osborn,  4  Or.  318;  Clack  v. 
Rev.  L.  ch.  Ill,  §  144)  has  been  White,  2  Swan  (Tenn.),  540;  Os- 
hcld  to  be  a  regiil:ilinti  of  a  pre-  born  v.  Hart,  24  Wis.  89. 
viouHly   existing   right   of   necessity;  ••<«  Constitution,  Art.  IV,  §  31.     A 

IS'ew  York  and  N.  E.  R.  Co.  v.  provision  for  private  drains  was 
lioard  of  K.  H.  Com 'crs,  162  Mass.  Iwld  unconstitutional  in  Iowa,  the 
81  38  N.  E.  27.  See  Packer  v.  law  prescribing  no  conditions  or  ju- 
Wclsted  2  Sid.  39,  111.  1658  .li.i:il  iiK|niry  for  the  exercise  of  tho 
(Cray's  Cases,  III.  467):  "It  is  rigUI.  Fleming  v.  Hull,  73  la.  598. 
not    only    a    private    inconvenience, 


§  427  PKIVATE  ROADS.  435 

vision  violated  the  federal  constitution,  since  the  taking  <>f 
property  for  private  use  was  takinj^  without  due  process  of 
law,'^"  but  this  certainly  cannot  be  true  Tlic  t-ontcntion  that 
l)roperty  can  under  no  circumstances  Ix/  condciiincd  Un-  pri- 
vate use  rests  chieHy  upon  the  fact  that  the  constitutions  pro- 
vide expressly  only  for  the  taking  for  public  use;  the  expres- 
sion of  one  is  sui)posed  to  be  the  negation  of  tin*  other.  Tin* 
objection  on  this  ground  disappears  when-  llic  constitution 
makes  positive  provision  for  the  taking  I'oi-  inivatc  use.  It 
ought  to  be  within  the  power  of  tln'  legislature  to  pi-ovide 
for  the  adequate  enjoyment  of  land,  where  it  can  be  secured 
by  compelling  another  owner  to  make  slight  concessions  whieh 
can  be  easily  offset  by  the  payment  of  pecuniary  eomj)ensa- 
tion.  In  the  case  of  the  mill  acts,  such  power  has  been  recog- 
nised without  express  constitutional  provision. 

39  Re  Tuthill,   163  N.   Y.   133,  57  I<.  E.  303. 


CHAPTER    XX. 
COMPUIiSORY  BENEFITS. 

§  428.  Protection  and  bounties.— The  encouragement  of 
trade  and  industry  is  everywhere  regarded  as  a  legitimate 
function  of  government.  Most  modern  states  protect  their 
citizens  to  a  greater  or  less  degree  from  foreign  competition, 
and  while  this  function  is  not  within  the  province  of  the  com- 
monwealth governments  of  the  United  States,  it  is  exercised 
very  freely  1)\-  the  national  government,  and  the  constitu- 
tionality of  the  tariff  laws  established  for  that  purpose  is 
generally  acquiesced  in.  Protection  against  domestic  com- 
petition has  a  very  different  aspect,  for  it  can  aid  one  class 
only  at  the  expense  of  another,  and  the  national  wealth  is 
diminished  instead  of  being  increased  by  interfering  with  the 
natural  play  of  economic  forces.  Even  the  exemption  of  some 
industry  from  taxation  is  justly  regarded  as  an  objectionable 
form  of  governmental  protection,  since  it  increases  the  bur- 
dens of  other  tax  payers,  and  is  therefore  forbidden  by  many 
state  constitutions. 1  'i'hc  same  objection  n])plios  still  more 
forcibly  against  a  system  of  bounties.  Bounties  to  sugar  pro- 
ducers were  provided  for  by  the  tariff'  act  of  1890,-  but  re- 
pealed by  the  act  of  18!)4.-'  The  Supreme  Court  of  the  Tnitetl 
States  has  not  passed  directly  upon  the  validity  of  this  legis- 
lation,^ but  a  similar  bounty  law  of  Michigan  has  been  de- 
clared unconstitutional.'"' 

§  429.  Scope  of  police  power.  — While  the  government  may 
ill  other  ways  aid  and  encourage  industry,  especially 
throniili  iid'oi'inat  ii)n  and  ediic.-ilion,"'  very  little,  it'  anything, 
can  he  aecoiiiplislicd  hy  iiie;isiii'es  of  compulsion  in  the  way  of 
stinndal  iiiii'  Itn'  in'iid  ud  ion  dl'  wcallli,  and  leij'islat  ion  ol"  this 
ehiira<'ter  has  |ii'act  leally  hrcn  aliandoned,  in  so  i'ai'  as  the 
(Mintriil    ol'   purely    indi\i<hial    activity    is   eoneri'ued.      The    pos- 

1  StimHf)!!  Am.  St;itiitf  I-:i\v,  §  'Mitl.  ^'  Miclii^iiii   Siij^ar  Co.   v.    Dix,    124 

a  Sec.  235-230.  .Mirh.  (;74,  .Ifi  L.   I{.  A.  320. 

'  Spc.  2,  No.  18(i.  '■  lI:iiiHi'()in    v.    Lowi'll,     Hi.'')    Mass. 

»  llnifofl  States  v.   If. •.-illy  C...,    Hi:',  lilt.    13  N.  K.  1!H). 
U.  S.  427,  18J»G. 

450 


§  430  SUMPTUAKV    LAWS.  457 

sible  range  of  such  legislation  would  c-over  on  tin-  one  han<l 
measures  designed  to  cheek  individual  improvidence,  on  Ww 
other,  measures  the  object  of  which  would  be  to  direct  in- 
dividual economic  activity  into  such  channels  as  are  believed 
to  confer  the  greatest  benefit  upon  the  coninuinity  as  a  whole. 
In  both  cases  we  may  speak  of  compulsory  benofits;  we  may 
designate  the  t^vo  classes  respectively  as  compulsory  measures 
against  improvidence,  and  compulsoi-y  industi-y  and  impnn'e- 
ment. 

COMPULSOKY  MEASURES  AGAINST    IMPROVIDENCE.      §§430-437. 

^430.  Sumptuary  lav^^s.  — In  former  times  tin-  statt*  at- 
tempted to  check  improvidence  and  extravagance  through  so- 
called  sumptuary  laws,  of  which  we  find  a  considerable  num- 
ber in  the  English  statute  books.  They  prescribe  the  apparel 
and  diet  proper  for  the  different  classes  of  the  people,  and 
were  doubtless  also  intended  to  maintain  class  distinctions, 
which  to  the  mediaeval  mind  appeared  as  part  of  the  ortler 
of  nature.  Statute  13  Ric.  II  c.  13  forbids  men  of  low 
degree  or  station  in  life  to  keep  dogs  to  hunt,  and  33  II. 
VIII  c.  5  prescribes  hoAV  many  trotting  horses  each  man  may 
keep  for  his  degree;  14  and  15  H.  VIII  c.  7  allows  men  of 
£100  annual  income  to  use  cross-bows.  Laborers  were  forbid- 
den to  indulge  in  such  games  as  tennis,  bowling,  ball  and  dice. 
Sir  Edward  Coke"  informs  us  that  the  common  law  gave  no 
way  to  matters  of  pleasure  (wherein  most  men  do  exceed),  for 
that  they  brought  no  profit  to  the  commonwealth. 

The  Revised  Laws  of  Massachusetts  of  1649  likewise  con- 
tained provisions  on  apparel. 

It  is  needless  to  say  that  there  is  no  such  legislation  at  pres- 
ent. All  sumptuary  legislation  of  the  old  type  is  plainly  con- 
trary to  the  principle  of  equality.  Apart  from  this  objection, 
statutes  of  this  kind  are  notoriously  futile,  and  an  attempt 
to  enforce  them  would  involve  inquisitorial  methods  and  a 
control  of  private  conduct  intolerable  to  a  free  jieoplr.  There- 
fore the  old  sumptuary  laws  have  everywhere  been  abrogated 
or  have  fallen  into  disuse.^     They  are  also  repugnant  to  tli.- 

7  2  Inst.  199.  '"  Oormany  evoii  now  rostraints  aro 

8  The  last  sumptuary  law  in  plat'cd  upon  wc.Minjrs  t..  whi.h 
Great  Britain  is  said  to  have  been  every  one  who  contributes  some  gift 
that  for  Scotland  of  1621;  in  Prus-  has  access. 

sia  funerals  vpere  regulated  iu  1777; 


458  COMPULSOEY  BEXEP^ITS.  §  431 

spirit  of  a  free  government,  and  it  may  be  contended  that  the 
right  to  the  pursuit  of  happiness  which  our  constitutions  guar- 
antee means  the  right  of  each  person  to  obtain  what  is  bene- 
ficial to  him  in  his  own  manner,  and  to  take  risks  affecting  him 
alone  according  to  his  choice.  Upon  such  a  view  the  conclu- 
sion may  be  reached  that  all  legislation  to  check  improvidence 
or  extravagance  is  unconstitutional.  Still,  it  can  be  shown 
that  this  conclusion  goes  too  far,  and  that  the  limit  of  the 
police  power  should  be  found,  not  in  the  object  to  be  at- 
tained, but  in  the  measures  of  control  attempted. 

The  opposition  to  extravagance  and  improvidence  is  cer- 
tainly not  foreign  to  our  governmental  policy.  While  our 
law  leaves  the  private  conduct  of  the  individual  free,  it  for- 
bids public  practices  which  are  calculated  to  tempt  him. 
Legislation  against  gambling  is  generally  i)laced  under  the 
head  of  public  morals,  but  the  immorality  of  gambling  lies 
in  its  improvidence  and  the  tendency  it  has  to  destroy  in- 
dustry and  thrift.  So  we  find  in  the  Revised  Statutes  of  New 
York  of  1828,'*  a  prohibition  of  all  idle  shows  and  exhibitions : 
"No  person  shall  exhibit  or  i)erform  for  gain  or  profit  any 
puppet  show,  any  wire  or  rope  dance,  or  any  other  idle  shows, 
acts  or  feats  winch  common  showmen,  mountebanks  or  jug- 
glers usually  i)ractice  or  perform."  A  law  i)rohibiting  at- 
tendance at  such  shows  would  be  only  a  step  further  in  the 
same  policy,  and  would  be  a  sumptuary  law.  It  would  be  as 
valid  as  the  law  forbidding  the  show,  and  would  only  be  more 
difficult  to  (^iiforcf. 

ij  431.  Spendthrifts.— .Moreover,  individual  extravagance  is 
held  to  jnsliiy  iTstraint  where  there  is  danger  tliat  it  may 
result  in  making  the  person  a  bui'den  to  others  or  t«>  the  \)\i\)- 
lic.  So  in  some  states,  in  conformity  to  the  ])i-aeti('e  of  the 
civil  law,  habitual  sjx'ndthrifts  may  he  deprived  uj"  the  eai-e 
and  inanaLTenietil  n\'  their  estates,  but  only  where  the  spend- 
thril't  wastes  <>v  lessens  his  estate  so  "as  to  I'Xpose  hinisell" 
or  his  family  to  wjint  or  sulVering,  oi-  an\'  county,  town  oi- 
ineoiporated  city  or  village  to  any  cliarge  or  expense  for  the 
siippoi't  of  himself  or  liis  family."'"  The  spendthrift  appears 
to  be  Iri-aled  ;is  a  |)ei'son  not  in  full  possession  of  his  nii-ntal 
powers.      It    is    (rue    that,    tin-    (•ommoii    law    did    not    i-estrain 

"1    \{i-\.  Stat.   |..  (')()().  §    1.  e'lllituiis     Revised     Statutes,    cli. 

8G,  Sec.  1. 


§432  COMPULSORY    IXSURAiN'CE.  45<j 

extravagance  in  this  niaiincr,  ami  lilackston.-  n-frards  the 
practice  as  questionable:"  "It  was  doubtless  an  excellent 
method  of  benefiting-  tlie  individual  and  of  preserving:  estat«*s 
in  families,  but  it  hardly  seems  calculated  Tor  IIk-  t,'cnius  of  a 
free  nation  who  claim  and  exercise  the  liberty  of  usinj,'  their 
own  property  as  they  please.  'Sic  utere  hio  ut  alicnum  non 
laedas'  is  the  only  restriction  our  laws  have  given  with  regard 
to  economical  i)rudence,  and  the  frecpient  circulation  and 
transfer  of  lands,  and  other  property,  which  caimot  be  effected 
without  extravagance  somewhere,  are  perhaps  not  a  iittb*  con- 
ducive towards  keeping  our  mixed  constitution  in  its  diir 
health  and  vigor."  If  this  Avas  the  policy  of  the  connnon  law. 
the  policy  of  Parliament  did  not  always  accord  with  it.'- 

§  432.  Compulsory  insurance.— The  most  important  form  of 
governmental  provision  against  improvidence  is  compulsory 
insurance.  In  Germany  the  law  requires  insurance  against 
lire,  and  in  the  case  of  wage  earners,  against  accident,  disease, 
disability  and  old  age ;  compulsory  fire  insurance  is  matter  of 
state  law  and  of  older  date;^'^  workmen's  insurance  rests  upon 
imperial  statutes  passed  in  the  years  from  1884  to  1891. 

Under  the  workmen's  insurance  laws  the  right  to  relief  is 
not  confined  to  persons  who  have  no  other  means  of  support, 
and  whose  maintenance  would  otherwise  fall  on  the  public : 
the  system  cannot  therefore  be  said  to  be  simply  a  form  of 
poor  relief,  but  is  designed  to  advance  the  economic  and  social 
condition  of  a  large  class  of  the  population  by  compelling  its 
members  to  make  certain  savings. 

Moreover,    contributions   are   made   by   the   state   and    arc 

11  1,  p.  306.  the    iodividual.      A    statutory   prohi- 

12  There  are  circumstances  under  bition  may  then  be  welcomed  as  an 
■which  sumptuary  laws  might  even  excuse  for  non-compliance.  If  the 
now  serve  a  valuable  purpose.  In  state  does  not  interfere  it  is  prob- 
Tndia,  custom  decrees  a  ruinous  ex-  ably  because  it  feels  its  impotence; 
travagance  in  the  celebration  of  but  legislation  for  such  a  purpose  is 
weddings  and  funerals,  which  is  a  within  the  legitimate  functions  of 
heavy  burden  on  the  poorer  classes,  govenimcnt,  if  it  can  be  carried  into 
but    which    they      are    incapable    of  effect. 

shakine    off.      It    is    a    well    known  i^  The    justification    of    the    coin- 

fact  that  a  custom  may   be  univer-  jjulsion    was    found    in    the    interest 

sally   recognised   as   michievous,   ami  which  the  state  had  in  the  continued 

yet  be  too  strong  for  voluntary  re-  ]>:iymciit   of   the   land   tax.    (Roscher 

sistance;  where  people  are  ignorant,  Nationaloekonomie,  Sec.   L'37  c). 
custom  is  far  beyond   the  power  of 


4(j0  COMPULSOEY  BENEFITS.  §  433 

levied  on  employers  even  in  cases  in  M-hieli  the  latter  can  in 
no  wise  be  held  responsible  for  the  condition  provided  against, 
as  e.  g.  old  age.  To  this  extent  there  is  not  so  much  insurance 
(for  the  contributing  employer  cannot  in  any  event  be  a  bene- 
ficiary)  as  taxation. 

§  433.  Its  constitutional  aspect.— What  would  be  the  con- 
stitutional aspect  of  compulsory  insurance  or  indemnity  funds 
in  this  country  ? 

The  levying  of  an  assessment  upon  employers  to  insure  em- 
ployees against  sickness  or  old  age  being  in  reality  a  form 
of  taxation,  would  have  to  be  judged  by  the  constitutional 
provisions  of  each  state  regarding  taxation.  In  most  states 
it  would  probably  violate  the  rules  regarding  uniformity  of 
taxation.  There  would  probably  be  also  a  strong  feeling  that 
the  purpose  is  not  a  public  one;  but  conceding  that  the  pur- 
pose is  novel,  it  is  impossible  to  assert  that  public  sentiment 
will  never  come  to  regard  the  securing  of  a  reasonable  com- 
petence to  the  economically  weak  and  dependent  classes  as  a 
proper  function  of  the  state.  It  would  lie  a  form  of  paternal 
government,  but  if  all  functions  which  may  properly  be  desig- 
nated as  paternal  were  necessarily  unconstitutional,  a  large 
amount  of  well  established   legislation  could   not  stand. 

Should  the  law  undertake  to  create  an  indemnity  fund  from 
compulsory  contributions  of  all  those  whose  business  or  i)rop- 
erty  occasions  the  loss  to  hv  i)rovided  against,  there  Avould  be 
something  analogous  1o  ;ui  employers'  liability  insurance.  The 
objection  to  siu-li  a  system  would  be  tliat  an  iiidividiial  would 
be  forced  to  share  in  making  good  a  loss  willi  which  in  a 
])ai-ti(Milar  case  ]\r  liad  no  connection,  and  although  he  took  the 
utmost  precaution  to  avoid  such  loss  so  far  as  the  manage- 
ment of  his  own  ])ropcfty  was  concerned,  lint  the  objection 
is  not  coTudnsivc.  The  controlling  consideraLion  is  the  exist- 
ence (iT  a  risk  or  danger,  wliich  the  ])olice  power  may  seek 
to  minimise;  and  it  is  i-easonaMe  that  lliose  w  lio  ci'cale  oi" 
maintain  the  risk  oi*  danger  for  llieir  own  hemlil  shonid  con- 
sent !<•  Ilie  most  ed'echial  means  (d'  ohxiating  ils  liaruirnl  <'oii- 
seqiiences;  and  collective  responsihility  is  a  wise  and  eon- 
si'rvative  melliud  nj"  irieeline-  the  risk,  and  its  imposition  shonid 
he  allowed  as  a  valid  cotMJilion  of  the  i-i^ht  of  l<eeping  a 
dangerons  iiistrnment . 

§  434.     American    legislation    providing    insurance.  — Upon 


§  434  COMPULSORY    INSURANCE.  4,;i 

these  principles  indemnity  is  provided  under  tlic  laws  oi  sev- 
eral states^-*  for  the  loss  of  sheep  kill.-d  hy  do^s.  A  tax  is 
levied  for  the  keeping  of  every  dog  upon  its  owner,  and  thi- 
amount  thus  collected  is  constituted  a  fund  fui-  the  payment 
of  damages  resulting  from  such  loss.^"'  If  the  purpose  for 
which  the  tax  is  collected  were  necessarily  unconstitutional, 
it  could  not  be  excused  on  the  ground  that  Ihc  keeping  of 
dogs  is  under  the  absolute  control  of  the  legislatiu-e,  and  that 
the  right  may  be  conditioned  upon  the  payment  of  a  license, 
—an  argument  deemed  sufficient  in  Wisconsin."'  In  Michigan 
and  Ohio  the  legislation  has  been  upheld  as  an  exercise  of  the 
police  power  as  distinguished  from  the  taxing  power.  The 
protection  of  an  important  industry  (the  raising  of  sheep  and 
production  of  wool)  is  held  to  be  a  legitimate  object  of  legis- 
lative action,  and  the  legislature  judges  what  means  are  best 
calculated  to  accomplish  the  object.^"  The  creation  of  a  col- 
lective liability  fund  is  thus  by  implication  sanctioned. 

Where  the  law  levies  contributions  from  one  class  to  make 
up  an  indemnity  fund  in  favor  of  another,  without  any  connec- 
tion between  the  business  of  those  assessed  and  the  loss  to  be 
provided  against,  the  compulsion  is  without  justification.  If 
the  assessment  might  in  itself  be  justified  upon  principles  of 
taxation  or  of  the  police  power,  yet  the  purpose  to  which  it  is 
applied  must  render  its  validity  doubtful.  So  where  half 
pilotage  is  collected  from  ships  refusing  the  services  of  a 
pilot,  and  the  amount  goes  to  a  fund  for  the  relief  of  distressed 
or  decayed  pilots,  their  widows  and  children.^ ^ 

Cases  of  insurance  proper,  in  which  a  risk  of  loss  is  met 
by  distributing  the  loss  among  all  those  similarly  exposed 
to  the  risk,  may  be  found  in  the  legislation  regarding  dam- 
age done  by  dogs  to  sheep,  in  so  far  as  the  owners  of  dogs 
are  also  owners  of  sheep,  and  in  the  law  under  which  the 
government  of  the  United  States  formerly  collected  from 
every  sailor  a  monthly  tax  of  40  cents  for  the  support  of  th(» 

14  New  York  1  Rev.  Stat.  p.   703.  Tlie  town  is  supposed  (o  jtay  out  of 

Illinois   Act   of   1879,   Ohio   Laws   §  the     fund     collected     fn«ni     d..^     li- 

'J861,   4215;    also   laws   of   IMichigau  censes, 

and  Indiana.  ^'''  Tenney  v.  Lenz,  16  Wis.  566. 

isln     Connecticut     the     damages  ''Van   Horn    v.    IVopIe.   46    Mich. 

can     be    collected     from     the    town,  183;  ITolst  v.  Roe,  :?'.»  Oh.  St.  :!«(>. 

which   has   its    recourse   against    the  is  Cooley    v.    Board    of    Wardens, 

owner  of  the  dog.     Town  of  Wilton  12  How.  299.  p.  313. 
V.  Town   of  Weston,  48  Conn.   325. 


462  COMPULSOEY  BENEFITS.  §  435 

[Marine  Hospital,^''  which  tax  was  abolished  by  act  of  June 
26,  1884.2'^  The  plan  was  constitutionally  objectionable  in 
that  it  did  not  give  to  all  contributing'  sailors  a  definite  legal 
right  to  relief. 

§  435.  Insurance  in  connection  with  re^stration  of  titles.— 
Compulsory  insurance  is  also  found  in  connection  with  the 
registration  of  land  titles.  The  law  of  Ohio,  following  the 
precedent  of  the  Australian  Torrens  Act,  directed  the  collec- 
tion, upon  registration  of  every  title,  of  a  fee,  to  go  towards 
the  making  up  of  an  insurance  fund  out  of  which  to  indemnify 
persons  who  should  be  deprived  of  their  titles  through  the 
operation  of  the  provisions  making  registration  conclusive 
upon  the  question  of  title.  This  provision  was  held  uncon- 
stitutional. The  Supreme  Court  said:  "These  lands  by  the 
terms  of  the  act  are  subjected  to  a  charge  or  contribution 
payable  through  the  recorder  to  the  treasurer  of  the  county. 
That  is,  to  the  extent  of  such  assessments  this  property  is  to 
be  taken  by  public  authority  and  without  the  consent  of  the 
owner.  For  what  public  purpose?  Primarily  the  purpose  is 
to  indemnify  private  persons  whose  lands  have  been  wrong- 
fully taken  from  them  under  the  provisions  of  the  act.  If 
the  act  were  otherwise  constitutional,  the  ultimate  benefit 
would  accrue  to  those  who  as  the  result  of  registration  (which 
gives  conclusive  effect  to  mistake,  fraud  or  forgery)  have 
acfiuired  hinds  which  belong  to  others.  That  this  is  in  no 
sense  a  pul)lie  purpose,  seems  cleai-.  Considering  the  purpose 
for  which  government  is  instituted,  and  the  high  conception  of 
individual  right  which  prevailed  at  Ihe  time  of  the  adojition 
of  the  constitution,  it  would  be  strange  if  authority  Imd  been 
conferral  upon  the  state  to  ciii-i-y  on  the  l)iisiiii'ss  of  an  in- 
surer of  private  titles. "^^ 

It  is  true  that  compulsory  insurance  is  not  an  individualistic 
institulioii.  hut  the  whole  development  of  tlie  police  power 
lijis  Urrti  ;i  iiio<li(ieation  ol"  llie  exirenie  libcrly  of  flic  individual 
which    \v;is  characteristic  of  the  state  government   of  lifly  or 

lu  KcviHwl   HtatutCH,   458.'},   4803.  .md   suit    of   :i    jrrciil    miml)or   of   thn 

a"  I    Huppl.    44.1.      A    very    Himilar  |iriiicipiil    niariiicr.s    :iiiil    seamen    of 

Mii-aHiirc   was   intr<Mlurcil    in    Eii>flaiiil  I  lie   Kinjjdoni. " 

!)>•   Uoyal    I'niclaniation   in    \iVM;  sec  -i  Stale    v.    CuillHTl.    .".C.    ( )li.    SI. 

Hym.T'H    Kdlclera,    vol.    L'O,    p.    1278,  575,  47  N.  E.  551,  38   1.   U.   A.  51<.». 

"according    to    tlic    vulimtary    ofTcr 


^  4:i(;  PEN«10X'    l-'UXDS.  4(;;{ 

seventy-live  years  aj^o.  The  purpose  ol'  tlic  Oliio  law  was  im 
less  public  than  that  of  the  law  indeinnifyiiiiu:  owners  of  sherj*; 
on  the  contrary,  it  was  a  great  deal  more  public  since  tlic  risk 
of  loss  sprang  from  the  exercise  of  a  public  function.  If  it  is 
competent  for  the  state  to  make  titles  conclusive,  tin-  indemnifi- 
cation for  losses  the  risk  of  which  inevitably  results  from 
the  system,  becomes  part  of  the  requirements  for  the  suc- 
cessful operation  of  that  system,  and  ceases  to  be  a  [)urely 
l)rivate  benefit.  The  system  being  responsible  for  the  loss, 
why  should  it  not  be  constitutional  to  distribute  the  loss  among 
the  beneficiaries  of  the  system?  The  provision  for  the  in- 
demnity fund  is  found  in  similar  laws  of  other  states--  and 
has  not  been  judicially  questioned. 

§436.  Teachers'  pension  fund.— The  Supreme  Court  of 
Ohio  has  adhered  to  its  condemnation  of  compulsory  insurance 
in  the  case  concerning  the  legality  of  a  teachers'  pension  fund, 
made  up  of  deductions  from  salaries.-"  It  was  held  that  the 
scheme  did  not  merely  involve  a  reduction  of  future  salaries 
(so  that  the  tax  payers  would  be  the  real  contributors  to  the 
fund),  but  a  deduction  from  salaries  already  earned,  or  con- 
tracted for,  and  hence  was  the  taking  of  private  property  from 
one  citizen  for  the  benefit  of  another.  "A  teacher's  salary  is 
his  property.  He  has  a  right  under  the  constitution,  to  use 
that  salary  for  his  own  benefit  or  for  the  benefit  of  others, 
as  he  may  see  fit.  If  he  thinks  it  best  to  provide  for  old  age, 
he  may  do  so ;  but,  if  he  prefers  to  spend  his  money  as 
he  earns  it,  it  is  his  right,  under  the  constitution,  to  do  that." 
The  act  was  also  held  to  be  void  because  not  operating  imi- 
formly  throughout  the  state.  The  objections  held  fatal  to 
the  laAV  would  have  had  no  force,  if  it  had  been  general,  and 
had  directed  the  pension  fund  to  be  made  up  of  deductions 
from  salaries,  the  right  to  which  had  not  become  vested. 

§  437.  Compulsory  insurance  of  workmen.— In  the  com- 
pulsory insurance  of  workmen  the  public  interest  is  more 
remote  than  in  the  insurance  of  land  titles  in  connection  with 
a  system  of  registration.     In  a  large  sense,  the  conununity  is 

22  Illinois  Act,  Sec.  99,  100;  Mass.  invali<l  delegation  of  power  to  the 

Eev.  Laws,  ch.   128,  Sec.  93  to  102.  Board    of    Education,    State   ex    rel. 

23Hibbard    v.    State,    65    Oh.    St.  Jennison   v.   Kogers,   S7   Afinn.   130, 

574,  64  N.  E.  109,  58  L.  E.  A.  654.  58  L.  E.  A.  663. 
So   in   Minnesota   on   the   ground   of 


464  COMPULSOEY  BENEFITS.  §  438 

certainly  interested  in  averting  sudden  and  unexpected  losses 
as  well  as  the  destitution  following  from  sickness  and  disease, 
and  the  distribution  of  these  losses  over  large  numbers  through 
insurance  is  a  legitimate  end  of  governmental  policy.  There 
is  no  warrant  for  denying  the  state  the  power  to  adopt  com- 
pulsory measures  for  the  purpose;  whether  such  measures 
should  be  adopted  where  public  sentiment  is  averse  to  such 
policy,  and  the  same  objects  are  adequately  attained  by  volun- 
tary co-operation,  is  a  question  of  policy  and  not  of  law.  It 
may,  however,  be  safely  asserted  that  compulsory  insurance 
requires  that  either  the  state  itself  becomes  the  insurer,  or 
that  it  exercise  an  efficient  control  over  private  or  semi-public 
associations  which  the  individual  is  compelled  to  join;  for 
this  alone  eliminates  from  the  problem  the  difficulty  that  the 
state  would  force  the  individual  to  enter  into  contract  rela- 
tions with  other  private  parties  without  substantially  guaran- 
teeing performance  to  the  individual  who  is  required  to  part 
with  his  money. 

COMPULSORY  INDUSTRY  AND   IMPROVEMENT.     §§438-439. 

§  438.  Former  English  and  colonial  legislation.— English 
legislation  of  the  sixteenth  century  furnishes  a  number  of 
illustrations  of  governmental  efforts  to  control  individual  eco- 
nomic activity  with  a  view  to  directing  it  into  channels  be- 
lieved to  be  most  productive  and  most  beneficial  to  the  com- 
monwealth. The  conversion  of  tillage  land  into  pasture 
especially  seemed  to  the  legislature  detrimental  to  the  national 
interests,  and  a  number  of  statutes  were  passed  to  forbid  such 
conversion  and  to  check  the  decaying  of  houses  of  hus- 
bandry.' A  similar  policy  appears  in  acts  forbidding  any  man 
to  l«'ep  more  than  two  thousand  sheep,^  or  r(>quiring  the  keep- 
ing of  on(?  cow  for  every  sixty  sheep.''  in  otdcr  to  maintain 
find  iMijx-ovr  tlic  1)1  (■<•(!  (>\'  horses,  tlie  owner  of  ev(>ry  park 
was  to  keep  two  mares,'  and  liorses  below  a  certain  size  were 
not  to  he  alloweil  lo  |>;is1ure  on  iiny  commons.'''  To  encourage 
h'liip  growing,  it  was  re(|uire(l  11i;i1  one  rood  oni  of  every  sixty 
acres  oi"  lillli'jc  shollM  he  sel  ;ip;irt    Tof  11l!l1    |)Urpose;"  to  prot(>ct 

1  (i   !1.    VIII,  '•.  .'-,;   -7    II.    VIII,  ••.  "2  aii.i  :t  I'.  &   M.  c.  3. 
22;   5  Jin<l  0   Fvl.    VF,  c  5;   2  und   3  '  L"7    II.    V 1 1 1,  c  C. 

P.  &  M.  2;  29  lOliz.  <:  r,.  ••32  11.  VIII,  c   13. 

2  25  TI.    Vni,  ..    i:'..  «24   II.   VIII,  c.  4. 


^  4;^})  COMPULSOHY    INDUSTRY.  4tj-, 

the  interest  of  the  colonies,  the  j^rowiii';-  ol"  t<)l)a(;e()  in  Knjrlaml 
was  forbidden.'  In  order  to  prevent  the  diversion  of  people 
from  agriculture  to  manufactures,  it  was  made  unlawful  t<>  a|)- 
prentice  children  of  persons  havinj;  less  than  liO  sh.  annual 
rent  to  a  trade  ;^  to  encourage  English  manufactures,  the  peo- 
ple were  required  to  wear  English  made  caps.'-'  Statutes  re- 
straining importation  and  certain  exports  to  protect  doniesti** 
industries,  are  mentioned  in  Blackstone  IV  154,  IIJO.  A  colonial 
act  of  Massachusetts  which  is  found  in  the  Revised  Laws  of 
ir)49  requiring  every  family  to  spin  an  amount  to  he  assessi-d 
from  year  to  year,  belongs  to  the  same  category. 

§  439.     Constitutional  aspect  of  such  legislation.— Restrictive 

or  compulsory  legislation  of  this  eharac-ter  is  iiot  at  present  to 
be  found  on  our  statute  books.  It  has,  moreover,  been  al)an- 
doned  by  nearly  all  civilised  states.  One  of  the  last  con- 
spicuous applications  of  the  policy  was  found  in  the  com- 
pulsory culture  system  pursued  by  the  Netherlands  in  lh<'ii- 
East  Indian  colonies;  but  the  policy  has  been  given  up  as  un- 
just and  oppressive.  It  should  be  mentioned  that  Oermany 
still  attempts  to  maintain  the  quality  of  the  breed  of  animals 
by  regulating  the  standard  of  males  to  be  admitted  to  the  serv- 
ice of  females,^^'— legislation  similar  in  principle  to  the  English 
statutes  before  mentioned. 

It  cannot  be  denied  that  the  state  has  a  very  great  interest 
in  the  improvement  of  private  land,  in  the  breeds  of  live  stock, 
and  in  the  distribution  and  quality  of  industries  and  manu- 
factures. The  non-exercise  of  the  police  power  on  behalf  of 
that  interest  must  therefore  be  due  to  countervailing  consid- 
erations. The  consensus  of  opinion  is  that  on  the  one  hanil 
the  self-interest  of  individuals  may  be  relied  upon  to  seek  the 
most  productive  channels  of  private  enterprise,  and  that  in- 
evitable mistakes  would  not  be  diminished  but  multiplied  by 
governmental  interference;  and  that  on  the  other  hand  com- 
pulsion would  not  only  be  burdensome,  but  so  dillicult  of  en- 
forcement as  to  result  almost  certainly  in  gross  inequality  of 
operation.  The  latter  consideration  is  probably  of  controlling 
effect.  The  exercise  of  individual  discretion  may  be  mani- 
festly contrary  to  the  public  interest:  thus  where  large  traet^ 

7  12  Car.  II    c.  34.  ^°  Meyer,    Verwaltungerecht,    Soc. 

8  7  H.  IV,  c.  17.  112. 
n  13  Eliz.  c.  19. 

30 


466  COMPULSORY  BENEFITS.  §  439 

of  land  are  kept  "waste  ami  uni]ni)rovetl  either  for  sport  or  for 
speculation ;  and  the  taxing  power  may  in  the  absence  of  con- 
stitutional restrictions  be  exercised  Avith  a  view  to  making 
this  form  of  holding  of  property  burdensome  to  the  owner  ;^^ 
but  to  compel  him  to  improve  Avould  throw  upon  the  state  the 
function  of  determining  the  kind  of  improvements  to  be  made, 
or  would  result  in  undesirable  improvements.  There  has  been 
little  occasion  for  judicial  discussion  of  the  constitutional  as- 
pects of  such  legislation :  but  at  least  one  court  has  expressed 
itself  strongly  to  the  effect  that  land  cannot  be  forfeited  for 
failure  to  make  improvements.  "I  am  unwilling  to  concede 
that  the  legislature  can,  under  pretext  of  jiromoting  the  in- 
terest of  the  state,  control  and  direct  the  citizen  in  the  use 
he  shall  make  of  his  private  property.  I  subscribe  to  the 
maxim,  'sic  uterc  tiio  ut  alienum  non  lacdas/  and  I  admit  the 
power  to  punish  for  an  injury  done  to  individuals  or  the 
public.  But  I  tleny  that  the  legislature  can  constitutionally 
prescribe,  under  color  of  preventing  public  or  private  mischief, 
the  quantity  of  labor  the  citizen  shall  perform  on  his  farm, 
the  kind  of  improvements  he  shall  make  and  the  time  within 
which  they  must  be  constructed.  The  toleration  of  such  power 
on  the  part  of  the  government  would  be  conceding  to  it  the 
right  of  controlling  every  mnii,  and  dii-ceting  the  road  he  shall 
travel  in  the  'pursuit  of  happiness.'  Thus  the  freedom  of 
llic  citi/cii  would  be  lost  in  the  despotic  will  of  the  government, 
and  under  the  semblance  of  liberty  we  should  have  the  es- 
sence of  tyranny.  "^- 

It  is  true   that  a  corporation    may   have   llie   duty   imposed 

"In  Rome  imperial  constitutioiis  liave  been  show  11  that  the  water 
provided  tliat  any  one  ])rinfjin^  de-  weakened  llie  i()adl)ed  and  thus  en- 
fierted  lands  under  cultivation  dangered  the  safety  of  iho  travel- 
should  obtain  title,  unless  the  own-  linp  public. — After  the  great  fire  in 
er  retdaimed  them  within  two  years;  LcmkIou  owners  of  ho\ises  burned  or 
(Codex  XI,  58,  8).  |.ullcd    dnwn     were    required    to    re- 

i-Caines    v.   Buford,    :{1    Ky.   481,  build  within  three  years;   in  ease  of 

1833. — That     a     railroad     company  neglect   to    do    so    the   value   of   the 

ejinnot  be  compelled  to  provide  out-  ground   was  to  be  assessed,  and   the 

lets    fur   water  accumulating  by   tlic  mayor     was     directed     to     sell     the 

side  of  its  right  r)f  way,  if  no  pub-  ground    at   the   estimated    value,    tlie 

lie   nuisancf!   is   thereby   creatr-d,   sec  proceeds    to    be    jiaid    to    the    owner. 

Chicago    &    10.    R.    R.    Co.    v.    Keith,  Stat.      19     Car.      11,     c.      3,     §      15 

(i7    Ohio    270,    65    N.    K.    1020.      It  (HitiT). 
might  have  been  difTiTcnt   if  it  could 


§440  JOINT    IMPROVKMKNTS.  4(;7 

upon  it  by  statute  (if  it  is  not  implied  Irom  llic  dI.J.-.-i  of  its 
o,harteri3),  to  exercise  its  corporate  powers  for  the  ptirpose 
for  which  it  was  created,'^  but  a  corporate  franchise  is  not 
a  common  right,  and  must  be  taken  subject  to  such  conditions 
;is  tlic  legislature  may  choose  to  annex  to  i1.  To  impose  an 
analogous  duty  upon  the  individual  owner  of  property,  would 
be  to  treat  such  property  as  affected  with  a  public  interest. 
It  is  not  impossible  that  with  regard  to  some  forms  of  projx'rty 
and  especially  with  regard  to  land,  the  courts  may  come  to 
i-ecognise  such  an  exercise  of  the  police  power,  if  practical 
methods  can  be  devised  of  enforcing  such  a  duty ;  but  no  such 
power  is  at  present  claimed  by  any  state.' •"• 

COMPULSORY    JOINT     IMPROVKMENT.S.      §§440-444. 

§  440.  Difference  from  cases  before  considered.  — While  in 
general  a  person  wull  not  be  compelled  to  improve  his  land  in 
a  particular  manner,  the  principle  suffers  some  modification 
where  the  improvement  (without  being  strictly  or  directly 
public,  though  perhaps  remotely  and  indirectly  so)  is  com- 
mon to  several  adjoining  estates.  In  one  aspect  the  com- 
pulsion is  exercised  in  favor  of  other  persons,  and  thus  re- 
sembles the  legislation  allowing  the  construction  of  private 
ways,  drains,  and  ditches  across  the  lands  of  others,  which  in 
some  states  is  expressly  authorised  by  constitutional  provi- 
sion.''^  But  in  the  cases  to  be  now'  considered  the  owner 
whose  land  is  affected  by  the  exercise  of  the  power  shares  in 
the  benefit  of  the  improvement  to  which  he  is  made  to  con- 
tribute, and  because  he  does  so  share  he  may  be  compelled 
to  bear  a  part  of  the  cost  of  the  joint  enterprise. 

§  441.  Drainage  and  irrigation.— The  drainage  and  irriga- 
tion laws  of  the  several  states  provide  that  where  a  number 
of  pieces  of  land  are  so  situated  that  either  the  improvement 
can  be  undertaken  only  jointly,  or  that  the  joint  improvement 
will  be  more  effective  or  more  economical  tlinn  individual 
works,  a  stated  number  or  proportion,  usual  I  \-  ;t  majority  in 
interest  or  area,  of  owners  may  petition  the  proper  authorities 
for  the  creation  of  a  drainage  or  irrigntion  district,  whicli  may 

13  Morawetz  Private  Corporations,  i^  The  same  would  be  true  of  pat- 

L'd  Ed.,  Sec.  1018,  1019,   1025.  ent  rights;   see  infra,  Monopolies,  § 

1-*  Stimson    Amer.    Stat.    Law    TT,  (i65. 

8341.  i«  See  See.  427,  supra. 


468  COMPULSORY  BENEFITS.  §  442 

include  the  lands  of  non-eonsenting  owners.  After  notice  and 
hearing  which  is  constitutionally  indispensable/'  if  a  proper 
case  is  made  out,  the  district  is  made  a  quasi-public  corpora- 
tion, commissioners  are  elected  or  appointed  for  the  manage- 
ment of  the  work,  and  the  expense  is  assessed  upon  the  own- 
ers according  to  the  benefit  received  by  each. 

Laws  of  this  character  exist  in  many  states  without  express 
constitutional  provision;  in  other  states,  e.  g.  Illinois,!^  they 
are  expressly  authorised  by  the  constitution.  It  has  been 
shown  that  in  New  Jersey  they  go  back  to  the  year  1783.19  ^s 
a  rule  the  statutes  refer  to  a  public  interest  subserved  by  the 
improvement  in  addition  to  that  of  the  owners  concerned. 
The  legislation  of  New  Jersey— which  recognised  the  require- 
ment of  the  public  interest— was  sustained  by  the  United 
States  Supreme  Court  against  the  contention  that  it  violated 
the  Fourteenth  Amendment.^"  The  legislation  of  Alassa- 
chusetts  has  been  sustained  although  it  speaks  only  of  the 
general  advantage  of  the  proprietors.-^ 

J;  442.  Constitutional  justification.— In  a  number  of  states 
it  has  been  held,  that  the  mere  economic  advantage  of  the 
owners  concerned  will  not  justify  the  exercise  of  the  power, 
but  that  some  distinct  public  benefit  must  be  shown.  Hence 
such  acts  have  been  sustained  solely  as  sanitary  measures,22 
and  have  been  declared  unconstitutional  when  they  proceeded 
upon  economic  groimds  or  where  no  jn'ovision  was  made  for 
determining  whether  the  pul)lic  health  would  W  hciiclited.-'' 
It  would  be  difficult  to  show  an  exercise  of  sanitary  power 
in  the  case  of  compulsory  irrigation,  and  the  predominance 
of  the  private  interest  in  the  case  of  drainage  generally  ap- 
pears in  the  provision  that  tlif  improvement  is  undertaken  only 
upon  a  petition  of  a  majority  of  owners.  Were  the  sanitary 
purpose  controlling,  private  owners  would  not  he  given  power 

17  F;illljr(i()k   IrriK.'itioii   District  v.  Sec.  3;  Coomcs  v.  Burt,  22  Pick.  422. 

Brudlcy,  1(54  U.  S.  112.  See,   also.   State   v.   Board   of   Coni- 

isConstitutioiiui     Anicndmpnt     <>f  iniHsioiicrs  of  Polk  Co.,  87  Mimi.  325, 

1878.  1»2  N.  W.  21(). 

111114   II.  s.  (JlO.  '-"- Kc  HycrH,  Tli   N.   \'.   I;    1  >i>iiiiclly 

a"WurtH   V.    IfoanIaiMl,    111    V.    S.  v.    Decker,    58   Wis.     \*\\  \    Kiiiiiie   v. 

CAH),   1885;   Hce,  also.   State  v.   New-  Bare,  G8  Midi.  025. 
ark,    3    Dutch.    (N.    J.)     185;    Tide  an  Re  Tutliill,   lfi3   N.   Y.   133,  57 

Water  Co.  v.  Coatar,  3  C.  E.  Circeii  N.    E.    303;    CifTord    Drainage    Dis- 

(N.  J.)  54.  trict  v.  Sliroor,   145   Ind.  572,  41    N. 

■ii  .MaHsacbuBctts    Rev.    Laws    105,  K.  (K'.fi. 


5^442  DRAINACiE   LAWK.  ^^^(J 

to  resist  measures  required  by  it.  Tlic  puMic  interest  (barriim 
the  general  interest  in  the  profitable  cniploynient  of  all  prop- 
ertjO  i«  therefore  in  many  cases  ratlicr  a  specious  plea  tliaii  a 
reality. 2^ 

Placing  the  power  on  i)urely  ec<)noiiiie  ^ruiuuls  lliere  is  still 
a  preponderance  of  argument  in  its  favoc.  It  is  true  tliat 
ordinarily  an  owner  will  not  be  forced  to  inii)ro^e  his  land 
merely  to  increase  the  general  prosperity  of  the  country  ;'■*•'' 
nor  will  one  party  be  forced  into  a  partnership  with  amillHi-, 
because  the  interests  of  both  can  be  better  served  by  joint  than 
by  individual  action.  But  lands  may  be  so  situated  toward 
each  other  as  to  create  a  mutual  dependence  and  a  natural 
community.  The  exercise  of  the  police  power  then  consists 
in  applying  to  this  community  the  same  principle  of  majority 
rule  which  is  recognised,  as  a  matter  of  course,  for  local  pur- 
poses in  larger  neighborhoods  constituting  political  subdi- 
visions. Taking  this  view,  compulsory  drainage  and  irrigation 
is  more  easily  justified  than  the  mill-dam  legislation,  which 
lacks  the  element  of  joint  benefit.  The  public  interest  is,  in 
both  classes  of  legislation,  about  the  same,  except  that  the 
drainage  of  wet  lands  may  in  some  cases  substantially  improve 
the  sanitary  condition  of  some  district.^" 

The  fact  that  express  constitutional  provision  has  been 
made  in  some  states  for  compulsory  drainage  or  irrigation,  is 
an  additional  argument  in  favor  of  the  inherent  power  of  the 

24  In  Ohio  the  legislation  was  de-  Co.,  45  N.  J.  L.  91,  an  act  was  Lel«l 
clared  unconstitutional,  the  joint  in-  unconstitutional,  by  which  a  corpo- 
terest  of  the  owners  not  being  re-  ration  was  authorised  to  reclaim  the 
garded  as  satisfying  the  nviuirenient  marshlands  of  a  certain  district 
of  benefit  to'  public  health,  conve-  without  the  consent  of  the  owners, 
nience  or  welfare  (Eeeves  v.  Treas-  The  expense  was  directed  to  be  fixed 
urer  of  Wood  Co.,  8  Oh.  St.  333,  by  contract  with  officially  appointed 
1858)  ;  later  on  the  provision  in  the  commissioners,  and  to  be  assessed 
statute  and  the  finding  by  the  local  by  them  upon  the  lands  reclainied. 
authorities  that  in  their  opinion  The  court  treated  the  scheme  as  a 
the  improvement  was  demanded  by  private  venture  for  private  emoln- 
or  would  be  conducive  to  the  public  ment.  (See  §  397,  note  42.)  Had 
health,  convenience  or  welfare,  were  the  improvement  been  regarded  as 
held  to  satisfy  the  constitution,  called  for  by  the  public  health,  the 
(Sessions  v.  Crunkilton,  20  Oh,  St.  act  would  still  have  been  objection- 
349    1870.)  able  because  it  left  the  selection  of 

25  As  to  sanitary  improvements  see  the  lamls  to  be  reclaimed  to  the 
§  617  infra.  discretion  of  the  company. 

2cln    Kean    v.    Driggs    Drainage 


470  CO.MPULSORY  BENEFITS.  §443 

legislature;  for  the  implied  limitations  of  the  constitution 
should  embody  permanent  and  unalterable  principles  of  jus- 
tice; and  the  fact  that  a  power  is  exi)ressly  bestowed  by  the 
legislature  tends  to  show  that  in  denying  it  the  courts  had 
misunderstood  or  unduly  strained  the  inherent  limitations  of 
the  legislative  power.  Compulsory  drainage  is  fully  recog- 
nised by  European  continental  legislation. 2"  Compulsory  as- 
sociation of  land  owners  has  also  been  resorted  to  to  facilitate 
measures  of  common  safety,  especially  the  erection  of  dikes 
and  levees  as  a  protection  from  inundation. ^^ 

§  443.  Party-walls. — The  principle  of  joint  improvements 
is  applied  in  some  states  to  party-walls.^^  The  statute  author- 
ises an  owner  when  erecting  a  building  to  place  one  half  of  the 
wall  upon  his  neighbor's  land,  and  requires  the  adjoining 
owner  upon  using  the  wall  in  building  on  his  own  land,  to 
pay  his  share  of  the  cost.  A  provision  of  this  kind  was  made 
by  the  provincial  laws  of  Massachusetts  as  early  as  1692.  The 
party-wall  statute  of  loAva  has  been  upheld  as  a  reasonable 
regulation  of  rights  of  property,  and  on  account  of  long-con- 
tinued acquiescence.^"  It  is  said  that  such  a  law  is  a  valid 
exercise  of  the  police  power  because  it  prevents  disputes  and 
unseemly  contentions  between  neighbors;  but  it  does  not  ap- 
pear how  the  law  tends  towards  that  cud.  In  IMassachusetts 
the  colonial  law  has  been  held  to  be  abrogated  by  the  con- 
stitution of  the  state,  because  repugnant  to  the  latter.^'  Where 
l)arty-wall  rights  liiivc  iilways  been  recognised,  they  constitute 
original  limitations  oi-  sei'vitudes  ujioii  the  right  of  property, 
and  as  such  are  not  liable  to  constitutional  objection.  This 
seems  to  be  the  law  of  Frauet!  under  Sections  ()(>()  ami  (iOl  of 
the  Civil  Code,  which  has  become  also  the  law  of  Ijouisiana.-'- 
Under  such  a  law  the  presuiii|)t  inn  is,  Ihni  in  all  i-i'cent  trans- 
fers Ihe  proj)ei'1y  has  been  ;M'i|uiiT(|  ciint  (ni(V<.  ^'et  a  French 
jurist  calls  Ihis  Ici^islalion  "one  dj'  llic  mosl  ritnnid.'ililc  im- 
I)airments  of  1  In-  |n'inci|ilc  iA'  1  lie  inviolability  nf  pfoperty  rights 

•-:7  I'russian     L:i\v    April     IH,     IS7!t,  ^"'Swil't,     v.     (!aln:iii.      102      lown, 

Fron.-li   Law  Juih-  '1\,   ISO.'-).  L'OO,  Wl  !>.  1{.  A.  MVl. 

28  Hoe    Act.    of    IllinniH    .Fiinc    U7,  ••'!  Wilkilis    v.    .Icw.MI,     III!)     Mass. 

1885,   Sec.   7r,;    Act    .Juno   30,    188r,,  29,  29  N.  E.  214. 

Sec.  2.  ^"  Lnrclin  v.   .Tackson,   9    Mart.   O. 

2"  Inwa,    Sfnitli     ('ariiliiia,     MisHis-  S.  724,   1821. 
Hi|>|>i,  LouiHiana;  StimHon,  Art.  217. 


§  444  PARTY  WALLS  AND  DIVISION  FENCES.  47I 

which  can  be  iiuagmL-d.     The  age  of  the  institution  does  not 
alleviate  its  exorbitant  character.  "•■^•'^ 

§  444.  Division  fences.— The  oblij^ation  to  contribute  to  the 
expense  of  partition  or  division  fences  is  very  much  more 
common  than  the  obligation  to  join  in  the  erection  of  a  party 
wall.^^  As  the  fence  is  a  common  measure  of  protection  to 
both  the  neighboring  owners  from  the  trespass  of  each  other's 
cattle,  the  obligation  of  common  contribution  to  its  expen.se 
may  be  regarded  as  a  legitimate  police  regulation.  An  owner 
moreover  inevitably  gets  the  benefit  of  his  neighbor's  fence, 
while  the  wall  of  his  neighbor's  house  affords  him  no  advantage 
unless  he  uses  it  for  building  his  own  house.  The  justice  of 
the  contribution  is  therefore  evident,  especially  since  the  law 
does  not  require  it  where  an  owner  chooses  to  let  his  land  lie 
open.^^  There  is  a  strong  equity  that  he  who  has  let  his 
land  lie  open  until  the  adjoining  owner  has  constructed  the 
entire  division  fence  should  be  compelled,  when  he  encloses 
his  lot  and  receives  the  benefit  of  the  fence  erected  by  his 
neighbor,  to  make  satisfaction  for  the  just  proportion  which  he 
ought  to  have  built.-^*^  The  obligation  seems,  however,  to  rest 
in  part  also  upon  the  consideration  of  mutual  economy,  for 
the  owner  cannot  evade  his  obligation  by  building  a  few  feet 
from  the  line,  unless  he  desires  to  dedicate  the  strip  left  un- 
enclosed as  a  road.""  In  the  case  last  cited,  the  court  said 
that  it  would  assume  the  validity  of  the  legislation,  and  the 
({uestion  of  constitutionality  does  not  appear  to  have  been 
seriously  raised  in  any  ease.^^ 

33  Ducrocq  Droit  Administratif,  38  See  McCormiek  v.  Tate,  I'O  111. 
Sec.  1347.  334;  Eust  v.  Low,  6  Mass.  90;  Hol- 

34  Stimson  Am.  Stat.  Law,  2182.  laday  v.  Marsh,  3  Wend.  142 ;  Shri- 

35  Jones  V.  Perry,  50  N.  H.  134.  ver  v.  Stephens,  20  Pa.  St.  138  (leg- 
"It  is  not  the  policy  of  the  law  to  islation  going  back  to  1700).  As  to 
compel  a  party  to  maintain  a  fence  legislation  providing  for  common 
for  which  in  consequence  of  laying  fences  enclosing  the  lands  of  a 
his  land  or  part  of  it  in  common  in  number  of  proprietors  for  protec- 
good  faith  he  has  not  any  longer  the  tiou  against  stock,  in  the  place  of 
slightest  occasion.  "—Castner  V.  Rie-  many  fences  for  particular  tracts, 
gel,  54  N.  J.  L.  498;  Smith  v.  the  cost  being  assessed  upon  the 
Johnson,  76  Pa.  St.  191.  owners  benefited,  sec  Rusboo  v.  Com- 

30  Hewitt  V.  Watkins,  11  Barb,  missioners  Wake  County.  93  N.  C. 
409.  143,  1885. 

37  Talbot  V.  Blacklege,  22  la.  572. 


THIRD  PxVRT. 

FUNDAMENTAL  RIGHTS  UNDER  THE 
POLICE  POWER. 


FIEST:     LIBERTY. 

CHAPTER 

XXI.     PERSONAL  LIBERTY. 

XXTT.     riVIL  LIBERTY:    RELIGIOUS  AND  POLITICAL. 

XXIII.     CIVIL  LIBERTY:     ECONOMIC. 

SECOND:      PROPERTY.      VESTED    RIGHTS   UNDER    THE    POLICE 

POWER. 

XXIV.  APPROPRIATION,    INJURY,    AND    DESTRUCTION. 

XXV.  CONFISCATORY  LEGISLATION. 

XXVI.  PUBLIC  GRANTS  AND  LICENSES. 

XXVII.  SOCIAL  AND  ECONOMIC  REFORMS. 

THIRD:      EQUALITY. 

XXVTTT.  EQUALITY  AS  A  POLTTTCAI>  PRINCIPLE. 

XXIX.  PARTICULAR  BURDENS. 

XXX.  SPECIAL  PRIVILEGES. 

XXXI.  TLASSIFICATION  AND  DISCRI^HNATION. 


474 


THIKJ)    PART. 

FUNDAMENTAi.  RIGHTS   INDKR    TlIK 
POLICE    POWDER. 

FIRST.     LIBERTY. 


CHAPTER    XXI. 


PERSONAL  LIBERTY. 

§  445.  Different  aspects  of  liberty.— The  Fourteenth  Ani.Mid- 
ment  has  ^ivon  to  liberty,  property,  and  equality  the  hijjjhc.st 
protection  of  which  rights  are  capable  under  our  system  of 
government,  and  has  thus  stamped  them  as  the  funtlameutal 
rights  of  the  individual.^ 

Of  these  the  right  of  liberty  is  necessarily  the  vaguest  in 
content,  since  it  is  quite  clear  that  liberty  must  be  understood 
as  being  subject  to  restraint,  and  the  mode  and  quantum  of 
restraint  is  the  question  at  issue.  We  can  form  a  tolerably 
definite  conception  of  personal  liberty  in  the  narrowest  sense, 

1  The  right  to  life. — It  is  almost  for  the  prevention  or  stopping  of 
a  matter  of  course  that  the  police  crime  is  that  committed  in  the  sup- 
power  does  not  exteud  to  the  takings    pression    of    a    riot.      The    laws    of 


of  human  life.  Not  even  the  most 
imminent  danger  of  contagion 
would  justify  the  killing  of  a  man, 
whereas  it  justifies  the  killing  of 
animals.  An  exception  from  this 
elementary  principle  is  however  ap- 
parently presented  in  the  case  of 
justifiable  homicide  by  an  officer  of 
the  peace.  The  homicide  may  occur 
either  for  the  purpose  of  preventing 
or  stopping  a  crime,  or  for  the  pur- 
pose of  preventing  an  escape.  The 
execution  of  a  sentence  of  death 
need  not  be  here  considered,  as  it 
belongs  to  criminal  justice,  and  not 
to  the  police  power.  Tlie  most  con- 
spicuous case  of  justifiable  homicide 


Massachusetts  and  of  Illinois  pro- 
vide that  if  in  the  efforts  made  tn 
suppress  an  unlawful  a.ssemlily,  and 
to  arrest  and  secure  the  i)ersoii8 
composing  it,  who  refuse  to  dis- 
perse, any  such  jiersous,  or  any  per- 
sons present  as  spectators  or  other- 
wise, are  killed  or  wounded,  (In- 
magistrates  and  officers  and  persons 
acting  with  them  by  their  onler, 
shall  be  held  guiltless  and  justifie'l 
in  law.  (Mass.  Rev.  Laws,  ch.  211, 
§  (i;  111.  Crim.  Code,  §  "J55 ;  sec. 
also,  Calif.  Penal  Code,  §  7:^1,  N<>\\ 
York  Code  Crim.  Proc.  §  114,  Bish- 
op's Xew  r'riminal  Law  f,  §  S49,  No. 
5:    II.  §  ()55,  Xo.  4.)     The  state  is 


475 


47G 


PEESONAL  LIBERTY. 


§445 


i.  e.  the  liberty  oi'  the  body,  and  exemption  from  servitude; 
and  this  will  be  the  first  form  of  liberty  that  will  be  con- 
sidered. 

The  liberty  of  private  conduct  is  next  in  order  of  importance 
to  the  individual,  and  may  be  regarded  as  practically  enjoy- 
ing the  same  immunity  from  restrictive  legislation  as  the  lib- 
erty of  the  body.  The  freedom  of  purely  social  intercourse, 
which  leaves  the  legal  relations  of  the  parties  to  each  other  un- 
affected, is  in  some  respects  part  of  the  liberty  of  private  con- 
duct, and  even  where  not  carried  on  strictly  in  private,  is, 
on  principle,  a  matter  of  no  concern  to  the  state,  and  there- 
fore on  the  whole  exempt  from  the  police  power. 

Civil  liberty  is  the  freedom  of  entering  into  legal  relations 
with  others,  and  of  appealing  in  any  manner  to  public  opinion 
or  sentiment.  This  liberty  must  be  subject,  to  manifold  re- 
straints in  behalf  of  the  public  welfare,  and  as  a  constitutional 
right  has  no  specific  content.  To  say  that  the  police  power 
must  respect  liberty  is  therefore  an  unmeaning  phrase.     But 


here  confrontetl  with  a  menace  to 
the  most  elementary  condition  of  its 
existence,  namely,  the  preservation 
of  common  peace  and  security,  and 
does  what  is  necessary  to  avert  im- 
mediate destruction  of  life  and 
projicrty.  The  police  power  is  then 
merged  in  the  higher  power  of  the 
state  to  defend  its  own  existence. 
Where  the  crime  to  be  prevented  is 
not  dircted  against  public  peace, 
but  otherwise  a  felony,  the  justifi- 
able homicide  will  in  most  cases  be 
closely  analogous  to  self-defence;  if 
n<it,  homicide,  it  seems,  should  be 
justified  (iidy  upon  the  principle  to 
be  explained  in  connection  witli  the 
case  of  killing  a  fleeing  ofTender. 
liishop,  in  liis  Criminal  T^aw,  states 
liie  right  to  kill  to  resist  felony  as 
accepted  doitrine,  but  intimates 
that  the  reasdu  for  the  rule  iloes  not 
ap|)ear   (f   8  SM),  No.  ."?). 

Killing  for  the  prev«'nti<in  nf  an 
cw'upe  will  in  ninny  eases  be  jus- 
tified by  self-defence,  where  the  of- 
fender resists  arrest  or  attcmf)ts  to 


break  away  from  it,  and  force  is 
necessary  to  overcome  force.  Other- 
wise where  the  offender  flees  from 
arrest.  The  established  rule  seems 
to  be  that  he  may  be  kiilccl  in  the 
pursuit,  if  the  crime  committed  has 
been  a  felony.  (Bishop  Cr.  L.  II, 
§  648;  Brown  v.  Weaver,  76  Miss. 
7,  42  L.  E.  A.  423.)  The  law  is 
stated  by  courts  and  writers  upon 
the  authority  of  the  older  books 
which  do  not  give  any  reasons  for 
it.  If  sound,  it  can  hardly  be  ex- 
jdained  otlierwise  than  as  an  act 
of  siunmary  justice.  But  it  would 
perhaps  be  more  reasonable  to  deny 
I  lie  inle  altogether,  and  to  regard 
as  justifiable  only  such  acts  as  are 
necessary  to  prt>vent  the  es<'ape.  The 
officer  may  therefore  use  his  weapon 
in  or<ler  to  clisable  the  escaping  fel- 
on; and  if  the  fugitive  is  thereby 
killofl  the  homicide  shonhl  b(<  re- 
gar<le<I  as  excusable.  I'.nt  an  ofTicer 
who  delil>erately  kills,  when  it  is  in 
liis  power  to  disable  merely,  sluuild 
not  be  held  to  be  justified. 


J$  446  LIBERTY  OF  THE  BODY. 


(  ( 


certain  spheres  of  liberty  may  be  singled  <Mit  as  witli.lrawii 
from  the  exercise  of  the  police  power  in  this  sense,  that  tli.-  ].ur- 
siiit  of  certain  objects,  or  certain  forms  of  activity,  cannot, 
in  themselves,  be  regarded  as  elements  of  public  danj^i-r.  Such 
special  recognition  is  given  by  our  constitutions  to  th.-  fr-.*- 
dom  of  religion,  of  speech  and  press,  and  of  as.sembly,  and  by 
foreign  constitutions  and  laws  to  tlic  freedom  of  migration, 
of  occupation,  and  of  association.  These  sjiheri's  of  libt-rty 
should  therefore  be  specially  considered,  and  tin-  iibiTty  of 
contract,  which  is  not  uncommonly  insisted  on  hy  our  courts, 
should  likewise  be  discussed  briefly.  For  most  pui-poscs  tin* 
best  definition  of  liberty  under  the  police  power  is  t<»  in- 
found  in  an  analysis  of  the  conditions  of  public  welfare  which 
justify  restraint  by  law,  such  as  has  been  undertaken  in  the 
foregoing  part  of  tlrts  treatise. 

LIBERTY  Oi<^  THE  BODY.     §§446-452. 

§446.  Cases  of  deprivation  of  personal  liberty.  — Depriva- 
tion of  personal  liberty  is  the  extreme  measure  of  the  police 
power.  While  commitment  and  detention  undei-  the  j)olice 
power  differ  in  character  and  consequences  radically  from 
imprisonment  by  way  of  punishment,  yet  so  incisive  an  im- 
pairment of  personal  right  will  be  resorted  to  only  in  the 
exercise  of  abnormal  power,  or  under  the  pressure  of  great 
public  danger.  The  commitment  of  lunatics  to  asylums,  and 
of  children  to  reformatories,  are  eases  of  exercise  of  the  su- 
preme guardianship  of  the  state  over  those  who  are  dependent 
or  not  in  possession  of  normal  faculties.^  The  detention  of 
persons  affected  with  or  suspected  of  contagious  disease 
in  quarantine  presents  one  of  the  cases  where  the  police  power 
is  literally  the  law  of  self -protection  and  paramount  neces- 
sity.^  In  a  case  where  no  present  danger  of  contagion  e.\- 
isted,  the  mere  fact  that  a  person  Avas  not  vaccinateil  was  ni»t 
recognised  as  a  reason  why  he  should  be  subjected  to  ipiar- 
antine.-* 

§447.  Compulsory  vaccination.  — The  reluctance  of  the  po- 
lice power  to  interfere  with  the  liberty  of  the  body  appears 
in  a  marked  degree  in  the  matter  of  compulsory  vaccination. 

2  See    §§    252-255,    260-263,    supra.      City   of   Nfw   Orleans,    lT    L:i.    .\nn. 

3  Harrison  v.  Mayor  of  Baltiinori',      521. 

1    Gill    264    (Md.),    1843;    State    v.  <  Re  Sniilh,   146  X.  Y.  tiS. 


478  PEESONAL  LIBERTY.  §  448 

The  eases  upon  which  the  courts  have  passed  turn  generally 
upon  the  right  to  make  vaccination  a  condition  of  attendance 
at  public  schools.  The  power  is  then  claimed  only  over  minors, 
and  only  as  a  condition  annexed  to  the  exercise  of  a  right 
or  privilege.  Upon  this  ground  compulsory  vaccination  has 
been  upheld  in  several  states.^  The  exercise  of  the  power  by 
school  or  health  authorities  has  been  denied  in  the  absence  of 
clear  delegation,*^  except  in  cases  of  imminent  danger."  The 
power  to  compel  adults  to  submit  to  vaccination  has  in  recent 
times  been  claimed  and  sustained  in  Georgia,  North  Carolina 
and  ^lassachusetts.^  If  the  pr6tection  of  public  health  allows 
(luarantine,  it  is  difficult  to  see  why  it  should  not  justify  com- 
pulsory vaccination.  The  difficulty  of  enforcing  measures  of 
personal  compulsion  is  a  strong  and,  generally  speaking,  an 
adequate  safeguard  against  an  abus(^  of  legislative  jiower  in 
this  direction. 

§  448.  Compulsory  service  and  labor  contracts."  — The  Eng- 
lish statutes  of  labourers  of  1349  and  1350,  occasioned  by  the 
depopulation  of  the  country  through  the  great  plague,  re- 
(piired  able-bodied  persons  not  having  means  of  their  own  to 
accept  service  when  ottered,  on  })ain  of  imprisonment,  and  to 
take  the  customary  wages,  or,  under  later  statutes,  wages  fixed 
by  justices  of  the  peace.  It  was  sought  to  ott'set  the  limitation 
of  wages  by  a  corresponding  limitation  of  the  i)rices  of  neces- 
saries of  life.  A  iiiiiiiber  of  similar  restrictive  acts  concerning 
laborers  were  enacted  in  llie  succeeding  two  hundred  years. 
The  essential  features  oT  Ihcsc  staliitcs  were  re-enacted  in 
1562  by  statute  5  Eliz.  cap.  24,  which  also  n'(|nii'('d  yearly  con- 
tracts of  service,  and  punished  bi-each  by  eithei-  party  without 
good  reason.  'Die  main  provisions  ol"  llu'se  hiws  gradually  fell 
into  disuse,  i)iil  the  statutes  were  finally  repealed  only  in  1875. 
The  object  of  this   legislation   was   paill\    the   sui>i)ressiou   of 

•'  HisHfill  V.  DuvisoM,  (55  ('oim.  l.s:5;  ^DulHcM    \.    Willi.-irnsport    Scliool 

A1m'.-1  v.  Clark,  S4  <'al.  226;   Bliio  v.  District,    KiU    I'a.   SI.   47(>;    State  ex 

J^carli,    ir,')    liKJ.    121,   no   N.    E.    89,  rol.      I'rpcman     v.     Zimriioriiiaii.     8(5 

r.O    L.    H.    A.   <;i:    ill    Die    latter   case  Mimi.  Sr^.^,  58  1>.  R.  A.  78,  90  N.  W. 

(•(>nii>iilHioii      couM      he     avoi'l'-il      by  7s;i. 

Htayiiiy  away   froni  hcIiodI.  ^.Morris     v.     ( 'uluinbiis,      102     (la. 

"I'oMh     v.     Breeii,     \(\7     111.     (>7 ;  792,  42  L.   U.  A.   175;  Stalo  v.   May, 

Htuto   ex    rel.    .X.laiiiH   v.    Hur(lj,'e,    95  120  N.  ('.  999.   lit  I,.  I{.  A.  588;  Com. 

Wis.  :J9ii.   :'.7    h.   H.   .\.    157.  V.    Pear    (MaHH.).  (i(i   N.   E.   719. 

"  See,  also,  §  584-580. 


§  449  LABOR  CONTRACTS.  47(j 

vagrancy,  but  it  was  also  gciu'i-ally  eoiisidcriMl  a  jtrop.-r  lunc- 
tion  of  the  police  power  to  secure,  if  necessary,  by  cojujiuisory 
measures,  to  agriculture  and  industry  an  adequate  and  st<'ady 
supply  of  labor.  The  policy  of  the  English  legislation  did  not 
extend  to  domestic  service,  which  in  (lermany  was  hrld  to  be 
subject  to  similar  measures  in  the  interest  oi"  property  and 
security.^''  At  the  present  day  it  is  only  necessary  to  refer  to 
this  kind  of  labor  legislation  in  order  to  j)oint  out  its  un- 
constitutionality. The  refpiirenient  to  serve  would  beyond  any 
doubt  be  involuntary  service  forbidden  by  the  Thirteenth 
Amendment  of  the  federal  constitution,  antl  a  statutory  min- 
imum term  for  labor  contracts  is  an  indirect  form  of  com- 
pulsory service.  Compulsory  public  service,  civil  or  military, 
stands  of  course  on  a  different  footing.' ^  The  practical  (jues- 
tion  at  the  present  time  is  whether  the  constitutional  freedom 
of  the  laborer  should  be  interpreted  to  mean,  not  only  that 
he  cannot  be  compelled  to  enter  a  service  against  his  will, 
but  that  he  cannot  even  be  forced  to  continue  in  a  service 
which  he  has  voluntarily  entered  under  a  contract  to  remain 
for  a  stated  period  of  time. 

§  449.  Unreasonable  contracts  to  serve.— A  relation  of  serv- 
ice may  rest  on  voluntary  contract,  and  .yet  be  contrary  to 
public  policy.  This  may  be  so  for  the  reason  that  the  con- 
ditions of  the  contract  subject  the  servant  to  an  arbitrary  dis- 
cretion. So  it  was  held  that  a  contract  absolutely  indefinite 
except  as  to  time,  leaving  the  master  to  determine  what  the 
service  should  be,  and  the  place  where,  and  the  person  to 
whom  it  should  be  rendered,  was  contrary  to  the  principle  of 
liberty  as  declared  in  the  Massachusetts  Declaration  of 
Rights.'-  Or  it  may  be  that  the  contract  is  for  an  unreason- 
able length  of  time.  In  England  there  is  authority  for  sus- 
taining contracts  to  serve  for  life,'-^  but  this  is  hardly  the  law 
in  America.  In  Indiana  a  w^oman  who  had  bound  herself  by 
indenture  to  serve  as  a  housemaid  for  the  term  of  twenty  years 
was  set  free  on  habeas  corpus,^^  it  being  held  that  the  enforce- 
ment of  personal  service  under  such  a  cont'-act  would  be    "pro- 

loRoscher     Nationalockonomio,     §  i'' Wallis  v.   Day,  1'   .M.  &   W.  l'7.*^; 

7(5.  Broom's  Constitutional  Law,  p.  ll.'i. 

iiMechem  Public  Officers,   §   241-  »+ Matter      of      M;ir.v      Clark.      1 

243;   Kneedler  v.  Lane,  45  Pa.  S.^S.  Blackf.   122,   1821. 

12  Parsons  v.   Trask,   7   Gray  473. 


4^0  PERSONAL  LIBEETY.  §  450 

duetive  of  a  state  of  feeling:  more  discordant  and  irritating  than 
slavery  itself."  The  civil  codes  of  California,  ^Montana,  North 
Dakota  and  Sonth  Dakota^^  provide  that  contracts  for  personal 
services  are  not  enforceable  against  the  employee  for  longer 
than  two  years.  The  German  Civil  Code  provides  that  if  a 
contract  of  service  is  entered  into  for  life  or  for  a  period  longer 
than  five  years,  it  may,  after  the  expiration  of  five  years,  be 
terminated  upon  six  months'  notice."'  In  the  absence  of  a 
statutory  provision  the  courts  must  determine  what  is  an  un- 
reasonable contract  of  service.  Such  a  contract  being  voidable, 
non-performance  or  abandonment  would  not  give  rise  to  a 
cause  of  action  for  damages. 

§  450.  Contract  labor  laws.— The  breach  of  a  contract  to 
serve  which  is  reasonable  in  its  terms,  like  the  breach  of  any 
other  contract,  gives  a  common  law  right  of  action  for  dam- 
ages. As  against  a  common  laborer,  this  remedy  is  as  a  rule 
practically  of  no  value.  A  court  of  equity  will  not,  however, 
enforce  a  contract  to  serve  specifically.  "The  rule,  we  think, 
is  without  exception,  that  equity  will  not  compel  the  actual, 
affirmative  performance  by  an  employee  of  merely  personal 
services,  any  more  than  it  will  coinpcl  an  employer  to  retain 
ill  his  personal  service  one  who,  no  matter  for  what  caus(\ 
is  not  acceptable  to  him  for  service  of  that  character.  *  *  * 
Kclief  of  that  character  has  always  been  regarded  as  imprac- 
ticable."'^ 

The  question  whether  the  legislature  is  competent  to  i)ro- 
vi<lc  llii-  relief  wliicli  (■(|iiity  denies,  or  to  puiiisii  eriiiiiiially  the 
lin';icli   of  ;i   eoiitraet  to  scrvc,   is  oin'   of  consideral»le   iiupor- 

t;iiici'.    Legislat  inn  of  this  clinracter  has  i n  ]<ii(»\vii  Toi-  a  long 

tinn-  ill  iii'itisli  colonies,  and  exists,  uiidrr  elaborate  safeguards 
i'lr  tile  rights  of  the  laliorer,  \i>  the  present  day.'^  Could  sim- 
il;ir    h'gisiation    Iw    inl  I'odueed    into    AiiHTieaii    tropicnl    posses- 

J^Cal.    §    ]9H(I,    Muiii.   §    2675,   N.  Colonies. — For    iiulentured    l;ili(ir    in 

I).  8  41(i.'i,  S.   I).  S  '-'TiW.  tlie  Anicrifan   Colonies  sec   the  Ser- 

Kijn'Jl.  vant  Act  of  Virfrini:i   of  1  TOn,  TI(Mi- 

'TArlliiir   V.   Oakcs,   iV.\    hVil.   .TIO;  injr's     Sl;i1ntoH     111.     p.      117.     .mmI 

Tolf'li)    &r.    |{.    Co.    V.    P('nnHyIv;nii:i  l'.nii-c      Ivoiioitiir      llisldi-y     of     \'ir- 

Cii.,  r>4   Ked.  7.30,  7  \'.\.  S^'inia,  iliap.    Id.      In   sfvcial  (iernnin 

•  "See     Alloynr     Irrhui'l,     'rropica!  st.-itcH    niulcr    rcci'iif    stiihilcs    :i    wii 

('(iloiiizalioii,    ciiap.    V.      Tlw    Incicn-  fnl    hrfinh    nf    ihimI    iiilmr   contr.'icls 

lured    Ij!il)or    SvHtein    in    tin-    I'.rilisli  is    jainislnil  ;    iimlcr   nlilci-    hiws,    spi' 

eifie   eiifort'eineiil    iiimI    crimin.-il    pun- 


§451  CONTRACT   LABOR  LAWS.  4j^l 

sions  without  creating  "involuntary  servitude?"  The  iV-nal 
Code  of  Hawaii! '-^  enforced  contracts  to  serve  for  not  excee<l- 
ing  a  maximum  term  of  years  fixed  by  statute,  by  crim- 
inal punishment  of  the  delinquent  laborer  and  by  his  foreibh* 
restoration  to  the  service  which  he  had  b'ft.  'i'lie  Hawaiian 
constitution  contained  a  provision  simihu-  to  tin-  Tliirtt-fntli 
Amendment,  but  this  provision  was  held  not  to  he  viohited  by 
the  statute,  since  a  contract  lawful  and  constitutional  in  its 
inception  cannot  become  illegal  or  unconstitutional  at  the 
option  of  one  of  the  parties.-'^ 

§  451.  American  legislation.— In  South  Carolina,  Alabama, 
and  Louisiana,  the  abandonment  of  certain  contracts  for  serv- 
ice is  made  a  misdemeanor.-^  It  was  held  in  South  Carolina 
that  the  liability  to  criminal  punishment  did  not  constitute 
involuntary  servitude,  and  that  the  legislature  had  power  to 
make  the  violation  of  a  particular  species  of  civil  contracts  a 
criminal  offense.  "Every  one  who  undertakes  to  serve  another 
in  any  capacity  parts  for  a  time  with  that  absolute  liberty 
which  it  is  claimed  the  constitution  secures  for  all.''--  Tln' 
Revised  Statutes  of  the  United  States  contain  provisions  under 
which  a  deserting  sailor  may  be  apprehended  and  placed  by 
force  on  the  vessel  to  which  he  belongs,  and  may  be  punished 
for  refusal  to  work.^^  The  constitutionality  of  these  provi- 
sions was  upheld  on  the  ground  that  sailors  are  a  dependent 
class  not  enjoying  the  full  discretion  of  free  adult  citizens,  that 
their  service  is  of  an  exceptional  character,  and  that  the  stat- 
utes in  question  are  sanctioned  by  the  old  established  legisla- 
tive practice  of  all  nations.^^  The  court  at  the  same  time  ad- 
mitted that  the  coolie  trade  would  be  as  obnoxious  to  the  Thir- 
teenth Amendment  as  actual  slavery.  The  generally  prevail- 
ing sentiment  against  the  compulsory  enforcement  of  labor 
contracts  found  expression  in  a  vigorous  dissenting  opinictn 
by  Justice  Harlan.    It  is  also  to  be  noted  that  after  the  aunexa- 

ishment  is  also  applied  to  wilful  vi-  1889.      The    penalties  »inust    be    the 

olations    of    contracts    of    domestic  same  for  breach  by  eitlior  jiarty. 

service.  "  §§  ^^DG,  -JoitS,  ^VJO. 

19  §  1382-1385.  24  Robertson    v.    Baldwin,    165    V. 

^oHilo  Sugar  Mfg.  Co.  v.  Mioshi,  S.   275.     See  The   Mobile,   IIG   Fed. 

8  Haw.  Rep.  201,   1891.  Rep.   212,  and   cases  there  cited,   as 

21  Report  Industrial  Commission  to  right  of  master  to  inflict  per- 
1900,  vol.  V,  p.  68,  120.  sonal  chastisement  on  sailor. 

22  State  V.  WilUams,  32  S.  C.  123, 

31 


482  .    PERSONAL  LIBERTY.  §  452 

tion  of  Hawaii  to  the  United  States,  Congrress,  in  giving-  to  the 
Islands  a  territorial  form  of  government  subject  to  the  Ameri- 
can Constitution,  abrogated  the  provisions  of  the  Penal  Code 
above  referred  to. 

§  452.  Specific  enforcement  and  criminal  punishment.— In 
view  of  this  state  of  the  authorities  it  is  not  easy  to  determine 
the  status  of  contract  labor  legislation.  On  principle,  how- 
ever, it  seems  that  a  distinction  should  be  made  between  spe- 
cific enforcement  and  criminal  punishment.  Specific  enforce- 
ment would  hardly  be  practicable  without  giving  the  master 
despotic  powers  over  the  servant  which  would  virtually  create 
the  condition  which  the  Constitution  sought  to  make  impossi- 
ble. The  conditions  on  board  a  ship  are  in  this  respect  widely 
different  from  those  prevailing  on  land.  The  imposition  of  a 
fine  or  even  imprisonment  for  a  wilful  breach  of  contract,  how- 
ever, while  impolitic  and  probably  impracticable,  can  hardly 
be  said  to  violate  any  well-defined  principle  of  constitutional 
law.  The  law  of  New  York,  following  an  English  statute,--"' 
punishes  the  wilful  and  malicious  breach  of  a  contract  of  serv- 
ice or  hiring  where  the  probable  consequence  Avill  be  to  en- 
danger human  life,  or  to  cause  grievous  bodily  harm,  or  to 
expose  valuable  property  to  destruction  or  to  serious  injury.-*' 
The  law  of  New  Jersey  punishes  the  wilful  or  negligent  disre- 
gard of  any  rule  of  a  railroad  company  regarding  the  running 
of  trains,  by  any  officer  or  employee  of  the  company,  undoubt- 
edly for  the  protection  of  similar  interests.-"  In  several  states 
till'  abandonment  of  locomotives  is  criminally  punished. ^^  If 
these  acts  are  valid— and  their  vnlidity  has  not  been  ques- 
tioned—it appears  that  a  direct  public  interest  in  the  perform- 
ance of  a  labor  contract  justifies  the  punish iiicnl  of  a  breach 
of  such  contract.  Suppose  then,  thnt  a  corporation  is  re(|uirt'(l 
by  law  to  carry  on  its  o|)(M'atioiis,  and  ni  ordiT  to  be  able  t(t 
fullil  lliis  obligalioii  i1  tiial\<'s  liimlini^  eonli-acls  with  its  em- 
ployees, why  sIhhiM  tlie  stale  be  |)()\vci'lcss  1o  pnnisli  llie  non- 
peri'orinaney  oT  IIh'  obligation  nn  the  part  of  tiie  eiiiplo\'ee, 
wlien   it   may  |)unisli   non-iierr<ii'inanee  by  llie  corporation,  and 

2r>  ConHjiirar-y    ;ui'l     I'roteclion     to  ('oiin.    Act.    1895,   cli.    87;    I'd.    Ifcv. 

I'n.pfrty  Act    IMTf,.  :\H  uu<\   :'.(•   Vi.'l.  (',,<!.•    ]S!i:!,    di.    127,    p.    J»li8 ;    N.    J. 

,.),.  HO.  (it-ri'l     Stilt.     iS'.ir),     |).     L'tiiU);      IVnii- 

•i'l  I'eiial  Cixlo,  §  (57:$.  sylviinin    Ad    Mcb.    L'L',    1S77,    I'.    i>. 

■-•TOen.  Stat.  ISOn,  p.  2668.  11,  §   1. 

■-•"Minn.  (Jen.  Stsil.    IS'M,  §  6038; 


§  453  PRIVATE  CONDUCT.  4t5;i 

performance  by  the  corporation  depends  upon  performance  by 
the  employee  ?2^  The  cases  in  wliich  speeiiie  cnftn-et'uu'nt  of 
labor  contracts  was  refused  by  courts  of  eciuity.  leave  this 
question  open,  for  in  those  cases  it  did  not  appear  that  the 
laborers  were  under  contract,  and  it  was  distinctly  recognised, 
that  there  might  be  liability  to  criminal  i)UJiishment,  even  if 
there  could  be  no  equitable  relief.""'  We  may  then  conclude 
that  in  a  business  affected  with  a  public  interest  the  violation 
of  a  contract  of  service  which  is  essential  to  the  carrying  on  of 
the  business,  may,  as  a  matter  of  constitutional  power,  be 
punished. 

LIBERTY  OF  PRIVATE  CONDUCT.  §§  453-457. 

§  453.  Legislative  policy.  — The  conduct  of  tlie  individual  in 
the  privacy  of  his  home,  not  involving  or  affecting  his  legal 
relations  to  other  persons,  is  generally  exempt  from  the  opera- 
tion of  the  police  power.  This  sphere  of  life  is  not  regarded 
as  a  legitimate  subject  of  public  regulation,  and  it  is  recog- 
nised that  regulation  Avould  in  most  cases  be  unenforceable. 
Non-interference  with  purely  private  acts  is  therefore  a  firmly 
established  principle  of  legislative  policy.  This  is  especially 
apparent  in  the  legislation  against  vice.''^  Although  gam- 
bling for  money  involves  the  transfer  of  property  and  is  there- 
fore not  strictly  private  conduct,  it  is  as  a  rule  forbidden  and 
punished  only  if  carried  on  in  public  or  quasi-public  places.'*^ 

29  See  People  v.  N.  Y.  Central  &c.  ter  to  a  uon-consenting  party  may 
R.  Co.,  28  Hun  543,  holding  that  a  be  made  an  oflfense,  as  may  be  the 
strike  does  not  excuse  a  railroad  mailing  to  a  consenting  party  if  it 
company  from  performing  its  du-  is  a  matter  of  business.  Grimm  v. 
ties  to  the  public.  However,  this  United  States,  156  U.  S.  604;  An- 
must  be  regarded  as  an  open  ques-  drews  v.  United  States.  162  U.  S. 
lloQ^  420.     But  when  the  law  attempts  to 

30  Toledo  &c.  R.  Co.  v.  Pennsyl-  punish  the  carrying  on  of  purely 
vania  Co.,  54  Fed.  Rep.  730;  Arthur  private  correspondence  though  of  an 
V.  Oakes,  63  Fed.  Rep.  310.  immoral    character     (arranging    for 

31  As  to  sexual  vice  see  §  235,  240,  an  assignation,  etc.),  it  probably 
supra.  The  law  deals  with  "open  oversteps  the  proper  sphere  of  the 
lewdness,"  "open  and  notorious"  police  power.  See  United  States  v. 
state  of  adultery,  etc.  Conduct  in  Martin,  50  Fed.  Rep.  918;  Unitcl 
the  presence  of  another  non-con-  States  v.  Lamkin,  73  Fed.  Rep.  459. 
senting  party  cannot  claim  to  be  32  For  prohibition  ..f  gambling  in 
private.  Fowler  v.  State,  5  Day  private  places  see  Greenville  v.  Kem- 
(Conn.)  81.  And  so  the  sending  of  a  mis,  58  S.  C.  427,  50  L.  R.  A.  725. 
sealed  letter  of  an   obscene  charac- 


484  PERSONAL  LIBERTY.  §  454 

The  policy  of  prohibitory  liquor  legislation  is  questioned 
chiefly  on  the  ground  that  it  interferes  in  its  effects  with  the 
freedom  of  private  consumption.  Even  the  advocates  of  pro- 
hibition concede  that  the  state  has  no  concern  with  the  private 
use  of  liquor.  "The  opponents  of  prohibition  misstate  the 
case  by  saying  that  the  state  has  no  right  to  declare  what  a 
man  shall  eat  or  drink.  The  state  does  not  venture  to  make 
any  such  declaration.  A  man  may  debauch  himself  in  private 
and  the  state  w411  not  interfere,  unless  the  debauchery  creates 
a  public  nuisance  or  disturbs  the  public  peace.  *  *  *  j^ 
is  not  the  private  appetite  or  home  customs  of  the  citizen  that 
the  state  undertakes  to  manage,  but  the  liquor  traffic.  *  *  * 
This  is  the  ground  of  Prohibition.  *  *  *  If  by  abolishing 
the  saloon  the  state  makes  it  difficult  for  men  to  gratify  their 
private  appetites,  there  is  no  just  reason  for  complaint.  "•^■^ 

§454.  Private  consumption  of  liquor.— It  is  therefore 
signiticant  that  the  j)()liey  of  prohibition  stops  short  of  dealing 
with  the  private  act  of  consumption.  Where  the  sale  or  giving 
away  of  intoxicating  liquors  is  prohibited  either  absolutely  or 
under  stated  conditions,  the  statutes  either  expressly  except 
the  giving  away  at  private  houses  as  an  act  of  hospitality  or  to 
members  of  the  family  or  household,  or  such  an  exception  is 
implied  by  the  courts. •'"  In  Pennsylvania  a  statute  prohi])it- 
ing  the  furnishing  of  liquor  to  a  person  already  visibly  affected 
by  its  use  was  held  not  to  apply  to  a  farmer  who  treated  a 
number  of  friends  and  farmhands  in  his  barn.  The  court  said  : 
"The  provisions  of  the  act  of  1887  are  not  directed  against  tlu^ 
use  of  liquor  by  the  individual  citizen,  and  they  do  not  inter- 
fere with  his  right  to  supply  his  table  with  them  to  his  family 
or  his  guest."  But  the  act  of  collecting  friends  already  under 
tlic  influence  of  liquor  was  looked  upon  as  one  affecting  not 
only  Ihe  individual.  1)ut  his  iiei-^lihors  and  the  public  as  well. 
There  was  also  proof  that  the  price  of  the  liijuors  furnished 
was  ehnrgcd  up  against  tiie  wages  of  the  men  who  di-ank  it, 
which   )iia<le  tile  transaction  a  sale.-'-'^'     It  was  said   in  a   later 

•■•«  Article   on    PorHonal    Liberty    in  Standisli,    'AT    Kaiis.    013;    Austin    v. 

CyclopjH'.lia      of      Tcmp<'ran<-c      aiul  State,   22    Ind.    Ai)p.    221,   .'>.3    N.    K. 

Proliii.iti.in;  see,  aJHO,  §  22.'').  4H1  ;   Alhrcdit   v.   IVoplo,  78  III.  r.K). 

:nHtatc    v.    .Tones,     .39    Vt.     .370;  •■'g  Altcnhurj,'  v.  Com.,   ]2()    I'a.   SI. 

PowerB  V.  Com.,  90  Ky.    107;    Key-  002. 
nol<l8  V.  State,   73   Ala.   3;    State  v. 


§  455  PKIVATE  CUx\!SUMPTlU.\   OF   LH^UOH.  4^5 

case  that  a  person  must  be  allowed  to  prove  the  eireiiinstaiicfs 
under  which  he  dispensed  liquor,  in  order  to  show  thr  jtriviil.- 
nature  of  the  act.^**  In  Maryland  an  aet  niakinj,'  it  a  niisd.-- 
meanor  for  any  person  to  give  away  intoxicating  li(iuor  on 
election  day,  was  applied  to  one  who  treated  in  his  own  house; 
but  here  the  private  house,  by  the  promiscuous  admission  of 
strangers,  was,  for  the  time  being,  converted  into  u  semi-pul)lie 
place.2" 

§  455.  Question  of  constitutional  right.— On  the  other  hand 
a  statute  of  Oregon  making  the  possession  of  opium  without  a 
medical  prescription  a  misdemeanor  was  upheld  on  the  ground 
that  an  inherently  dangerous  article  may  be  altogether  for- 
bidden by  law%  and  in  Washington  it  was  held  that  the  law 
may  punish  the  mere  private  act  of  smoking  or  inluding 
opium. 2^^  While  the  private  act  of  consuming  liquor  is  always 
left  free,  the  Supreme  Court  of  the  United  States  has  held  that 
the  state  may  absolutel}^  prohibit  the* manufacture  of  licpior 
for  drinking  purposes,  even  for  private  use.^^  Perhaps  the  facts 
before  the  court  did  not  call  for  this  ruling,  for  the  claim  that 
all  the  beer  manufactured  in  a  large  brew^ery  was  for  the 
private  use  of  the  brewer  was  manifestly  al)surd.  But  a  statute 
undertaking  to  prohibit  the  growler  of  fruit  or  grapes  from 
manufacturing  brandy,  cider,  or  wine  for  his  own  use,  may  be 
regarded  as  a  measure  intended,  not  primarily  to  prevent 
private  use,  but  to  render  more  difficult  the  evasion  of  the  pro- 
hibition of  the  manufacture  for  purposes  of  sale.  ^loreover  a 
statute  W'hich  may  prohibit  selling  or  giving  away,  may  un- 
doubtedly also  prohibit  purchase  or  acceptance,  although  regu- 
larly only  the  selling  or  giving  aAvay  is  forbidden.  Assuming 
that  the  law  were  to  forbid  purchase  or  acceptance,  it  woidd 
be  in  accordance  with  recognised  principles,  which  are  applied 
in  the  legislation  against  lotteries  and  for  tlie  jirotection  of 
game,  to  make  the  possession  of  liquor  prima  facie  evidence 
of  the  act  of  purchase  or  acceptance.  Tlius  the  aet  of  private 
consumption,  without  being  directly  forbidden,  might  be  made 

38  Com.    V.     Carey,     151     Pa.     St.  of    Portlaiui    forbidcling    the    smok- 

368.  ing  of  opium,  to  be  illegal,  because 

3T  Cearfoss  v.   State,   42   Md.   403.  not  within  the  charter  powers  of  the 

38  Luck    V.    Sears,    29    Ore.    421;  city.     Ex  parte  Ah  Lit,  2(51  V.l.  nil'. 

Territory  v.   Ah  Lim,   1  Wash.   15(3,         •!'•'  Mugler    v.    Kansas,    123    U.    S. 

9  L.  E.  A.   395.     The  federal  court  623. 

declared    an    ordinance    of    the    city 


486  PERSONAL  LIBEKTY.  §  456 

presumptive  evidence  of  either  the  illegal  act  of  purchasing 
or  accepting,  or  of  the  illegal  act  of  manufacturing,  and  if  it 
were  not  for  the  liberty  of  importing  from  other  states,  private 
consumption,  while  not  wrongful  in  itself,  would  be  conclusive 
evidence  of  a  wrongful  act.  Under  these  circumstances  it 
seems  impossible  to  speak  of  a  constitutional  right  of  private 
consumption.  There  seems  to  be  no  direct  judicial  authority 
for  declaring  private  acts  exempt  from  the  police  power,  and 
the  universal  tolerance  with  regard  to  them  should  be  ascribed 
to  polic3\  Like  any  other  exercise  of  the  police  power,  control 
of  private  conduct  would  have  to  justify  itself  on  grounds  of 
the  public  Avelfare.  Aside  from  this,  the  practical  difficulties 
of  enforcement,  coupled  with  the  constitutional  prohibition  of 
unreasonable  searches,  will  in  general  be  an  adequate  protec- 
tion against  an  abuse  of  legislative  power  in  this  domain. 

§  456.  Principle  of  statutory  construction— Liquor  in  clubs. 
— The  exemption  of  private  conduct  from  police  regulation, 
while  not  a  matter  of  absolute  constitutional  right,  is  of  im- 
l)ortance  as  a  principle  of  statutory  construction.  Thus,  as 
above  shown,  a  prohibition  against  the  giving  away  of  liquor 
is  interpreted  as  not  including  the  giving  away  within  the 
household  or  family.  The  principle  may  in  many  cases  be  ex- 
tended so  as  to  protect  conditions  and  relations,  which,  while 
not  strictly  private  or  domestic,  are  yet  not  in  any  sense  public 
or  promiscuous.  So  where  statutes  regulating  the  use  of  oleo- 
margarine place  boarding  houses  on  the  same  footing  with  iinis 
and  hotels,  this  can  hardly  apply  to  cases  Avhere  a  family  has 
a  small  number  of  private  boarders.  A  special  difficulty  arises 
in  connection  with  clubs  where  intoxicating  liquor  is  served 
to  members  for  pay.  There  is  a  conflict  of  judicial  opinion 
upon  the  question  whether  such  furnishing  of  li(|uor  consti- 
tutes ;iM  unlnwlul  selling  within  the  meaning  of  the  law. 
Eliminating  the  cases  in  wiiicii  I  In-  answer  was  madi'  1o  (Icpciid 
upon  tlic  (character  ol'  tlif  club,  so  that  the  statu1oi\v  penalties 
were  api)lied  to  fraudulent  devices  1o  evade  Jlie  ])rovisions  of 
the  law,""'  the  (luestion  turns  either  upon  th(>  meaning  of  a  sale 
or  uf)on  tbe  j)resumable  iiiletit  of  the  legislature,  'i'he  courts 
<p|   llnirland,  \ew  York,  rmnsylvania,  Massachusetts,  Virginia, 

«"  Hifkart  v.  Pooplo,  7;»  111.  Hr,;  People  v.  Andrews,  115  N.  Y.  427, 
(Unn.  V.  Smitli.  102  Muhh.  144;  L'2  N.  E.  1118;  Rlato  v.  TTor.ir.'k,  41 
Com.     V.      Kwi^',      I  tr,      Mmhh.      119;      Kans.  87,  3  L.  R.  A.  587. 


§457  SOCIAL  I. XTEUCOURSE.  457 

South  Carolina,  .Missouri,  Texas,  and  \lontana  liold  lliat  a  boim 
fide  club  is  not  within  the;  statute;  the  eourts  of  Maryhind, 
North  Carolina,  Alabama,  Louisiana,  Indiana,  Mieiiitran,  Nrw 
Jersey,  and  Kentucky,  hold  that  it  is."  Wliile  it  is  dinicult  to 
deny  that  the  furnishing  oi'  licjuor  for  pay,  even  without  profit, 
is  a  sale,  yet  there  is  great  force  in  the  argument  that  the 
statutory  provisions  regarding  dramshops  or  other  places 
w^here  liquor  is  sold  are  often  totally  unsuited  to  social  clul)s, 
making  it  practically  impossible  for  them  to  obtain  a  license. 
From  this  it  may  be  inferred  that  sales  at  a  club  are  not  within 
the  intent  of  the  statute.  The  most  satisfactory  method  of 
dealing  with  the  question  is  to  make  special  provision  for  social 
clubs.  In  Massachusetts  special  licenses  are  granted  to  clubs, 
which  are  deemed  proper  organisations,  for  dispensing  li(iuor 
to  members  only,  free  from  certain  regulations  applicable  to 
other  places  where  liquor  is  sold.^-  The  New  York  law  dis- 
tinctly refers  to  corporations  or  associations  trafficking  in 
liquors  solely  with  members  thereof,' ^  and  likewise  contains  a 
few  special  provisions  in  their  favor. 

§  457.  Freedom  of  social  intercourse.— The  narrowest  con- 
ception of  personal  liberty  must  include  the  right  to  enter  into 
relations  which  do  not  affect  the  legal  rights  of  the  parties, 
which  do  not  directly  endanger  public  safety,  health,  order  or 
morality,  and  which  are  not  intrinsically  wrongful  or  vicious 
according  to  generally  accepted  standards  of  morals  or  de- 
cency. Relations  of  such  a  character  are  not  legitimately  sub- 
ject to  the  police  power,  and  we  may  speak  of  a  right  of  social 
intercourse  as  a  part  of  constitutional  liberty.  Therefore  the 
law  cannot  forbid  free  citizens  to  speak  or  walk  or  visit  with 
each  other.     It  has  been  held  in  Missouri  that  persons  cannot 

41  Graff  V.   Evans,  L.  K.   8   Q.   B.  330,  11  L.  R.  A.  593;  State  v.  Kast.-n 

Div.    373;    People   v.   Adelphi    Club,  Social  Club,  73  ^[(l.  5i7,  10  L.  K.  A. 

149  N.  Y.  5,  31  L.  R.  A.  510;  Klein  64;    State  v.   Ncis,   lOS    X.   C.   7.S7; 

V.  Livingston  Club,  177  Pa.  224,  34  Martin  v.  State,  59  Ala.  34;  State  v. 

L.    R.   A.    94;    Cora.    v.    Smith,    102  Boston  Club,  45  La.  Ann.  5S5,  20  L. 

Mass.      144;      Piedmont      Club      v.  R.  A.  185;  IMarmont  v.  State,  4S  In.l. 

Com.,    87    Va.    540;     State    ex    rel.  21;   People  v.   Soulo.   74    .Mich.   250, 

Columbia  Club  v.  McMaster,  35  S.  C.  2  L.  R.  A.  494;  State  v.  Essex  Club. 

1;  State  V.  St.  Louis  Club,  125  ^lo.  53   N.   J.  L.   99;    Kentucky   Club  v. 

308,  26  L.  R.  A.  573 ;  State  v,  Austin  Louisville,  92  Ky.  309. 

Club,  89  Tex.  20,  30  L.  E.  A.  500;  42  Rev.  Laws,  cli.  100.  §  88. 

Barden  v.  Montana  Club,   10   Mont.  -la  Liquor  Tax  Law,  §  24. 


488  PERSONAL  LIBEKTY.  §  457 

be  forbidden  knowingly  to  associate  with  other  persons  having 
the  reputation  of  thieves,^^  and  in  Kentucky,  that  persons 
other  than  male  relatives  cannot  be  forbidden  to  speak  to  a 
prostitute  on  a  street."*^  Such  measures  would  result  in  a 
social  isolation,  which  can  only  be  inflicted  as  criminal  punish- 
ment by  due  process  of  law.  It  is  conceived  that  it  would  be 
entirely  bej'ond  the  power  of  the  state  to  for])id  mere  social 
intercourse  between  white  persons  and  persons  of  color. 

The  freedom  of  social  intercourse  must  also  include  the 
right  to  use  any  language  which  the  parties  nmy  choose.  In 
countries  in  which  the  policy  of  the  government  is  to  substi- 
tute the  language  of  the  predominant  nation  of  the  state  for 
that  of  other  nationalities  inhabiting  provinces  or  districts  of 
the  state,  measures  to  that  end  do  not  extend  to  the  control 
of  purely  social  relations. 

In  distinction  from  the  liberty  of  private  conduct  at  home, 
this  right  of  social  intercourse  includes  many  acts  which  are 
public  and  are  susceptible  of  proof  without  unconstitutional 
searches  or  other  intrusion  into  privacy.  The  denial  of  the 
power  of  the  state  follows  from  the  consideration  that  there 
must  be  an  intimate  social  sphere  in  which  the  use  and  develop- 
ment of  individual  faculties  is  absolutely  inconsistent  with  the 
exercise  of  compulsion,  and  especially  that  association  with 
other  persons  is  part  of  tlie  enjoyment  of  life,  .nid  tliat  the 
entire  separation  of  different  classes,  in  llic  absence  of  specific 
juiil  iiidividn;)!  clniiciils  of  danger,  lo  l)e  established  by  due 
process  of  l;iw,  cannot  l)e  regarded  ;is  necessary  to  tht>  ]iublic 
welfare,  where  the  theory  of  r(|ii;ilily  of  rights  prevails. 

It  Kx    |):iit.'   Smilli,    i:i.j    Mo.    L'l23,  ••"•  Hechiii;,^,.,-  v.   Maysville,  22  Ky. 

33  L.  H.  A.  (306.  l-iw   Uvik  480,  49  L.  li.  A.  114. 


CHAPTER  XXII. 

CIVIL  LIBERTY:     RELIGIOUS  AND  POLITICAL. 
FREEDOM  OF  RELIGION.     §§  4.5.S-470. 

^458.  The  constitutional  guaranty.  — An  expre.s.s  fjuaraiity 
of  the  freedom  of  religion  is  found  in  every  American  eoiisti- 
tution.  Congress  is  forbidden  to  make  any  law  respecting  an 
establishment  of  religion,  or  prohibiting  the  free  exiTcise 
thereof,!  and  in  substance  the  same  limitation  of  jxjwer  re- 
strains every  state  legislature.  The  provision  of  the  constitu- 
tion of  Illinois  may  be  quoted  as  comprehensive  and  typical: 
"The  free  exercise  and  enjoyment  of  religious  profession  and 
worship,  Avithout  discrimination,  shall  forever  be  guaranteed, 
and  no  person  shall  be  denied  any  civil  or  political  right,  i)rivi- 
lege,  or  capacity,  on  account  of  his  religious  opinions ;  but  the 
liberty  of  conscience  hereby  secured  shall  not  be  construed  to 
dispense  with  oaths  or  affirmations,  excuse  acts  of  licentious- 
ness, or  justify  practices  inconsistent  with  the  peace  or  safety 
of  the  state.  No  person  shall  be  required  to  attend  or  support 
any  ministry  or  place  of  worship  against  his  consent,  nor  shall 
any  preference  be  given  by  law  to  any  religious  denomination 
or  mode  of  worship. "^  The  effect  of  this  constitutional  guar- 
anty will  appear  from  a  consideration  of  the  various  kinds  of 
possible  legislation  regarding  religion. 

§  459.  Repressive  sectarian  legislation.— The  law  may  con- 
ceivably undertake  to  punish  or  restrain  expressions  of  sen- 
timent having  reference  to  religion,  which  are  contrary  to 
some  particular  religion,  faith  ov  doctrine.  Sectarian  legisla- 
tion of  this  character,  in  addition  to  the  common  law  punisli- 
ment  of  heresy  under  the  writ  de  haeretico  comburcndo,  began 
in  England  in  the  fifteenth  century,''  and  was  particularlx 
active  during  the  reigns  of  the  Tudors  and  Stuarts,  lilack- 
stone'*  discusses  a  considerable  number  of  these  laws  which 
Avere  in  force  at  his  time;  they  have  all  since  been  repealed. 
Of  the  American  colonies,  Massachusetts  and  Virginia,  in  the 

1  TT.  8.  Constitution,  First  Amend-         ^2  H.  IV,  cap.  15. 
ment,  ^  Book  4,  cli.  4. 

-•Art.    II.   §   3. 

489 


490  CIVIL  LIBERTY:     RELIGIOUS  ANDPOLITICAL.      .     §  460 

course  of  the  seventeenth  century,  enacted  laws  for  the  repres- 
sion of  Catholics  and  Quakers,  but  these  laws  disappeared  in 
the  course  of  the  eighteenth  century.  The  absence  of  all  repres- 
sive sectarian  laws  constitutes  the  principle  of  toleration,  first 
proclaimed  in  Rhode  Island's  charter  of  1663.  This  principle 
is  amply  secured  by  the  constitutional  guaranty  of  freedom 
of  religion. 

§  460.  Support  of  church  out  of  public  funds.— The  state 
may  conceivably,  without  restraining  dissenters,  support  one 
religion  out  of  the  public  funds.  This  is  the  principle  of  the 
established  religion  or  church.  It  involves  at  least  the  taxa- 
tion of  individuals  in  behalf  of  a  religion  which  they  do  not 
acknowledge.  In  ^Massachusetts,  the  town  was  at  the  same 
time  a  parish,  and  M'as  under  legal  obligation  to  maintain 
places  of  worship  and  ministers.  In  the  seventeenth  century, 
the  law  was  modified  so  that  every  Protestant  could  demand 
that  his  contribution  should  go  toward  the  support  of  his  own 
denomination,  and  in  this  form  the  principle  was  carried  into 
the  constitution  of  ^Massachusetts  of  1780,  and  was  retained 
until  1835,  when  it  was  superseded  by  the  eleventh  amendment 
to  the  state  constitution.''  There  is  now  no  American  state  in 
which  the  power  of  taxation  is  exercised  for  the  support  of 
one  religion,  oi-  a  number  of  religions,  and  all  legislation  to 
that  effect  would  be  contrary  to  a  provision,  that  "no  person 
shall  be  refjuired  to  attend  or  support  any  ministry  or  place 
of  worship  against  his  consent."  The  abandonment  of  such 
I)ublic  support  and  the  emancipation  of  the  civil  status  from 
the  rtHiuirement  of  religious  sanction  or  recognition,  are  the 
main  points  in  the  establishment  of  the  principle  of  the  separa- 
tion of  church  and  state. 

^  461.  Religious  disqualifications.— Freedom  of  religion  is 
impaired  l.y  Ihf  nM|nirement  of  religious  profession  of  .some 
sfiit  tor  the  fxercisc  of  iMihlic  lunctions.  This  was  the  policy 
oT  till-  Knglish  ( 'or|)or;i1  ion  .iiid  Test  Acts.  The  (irst  constitu- 
tions of  New  ll;iiii|»sliirc  .-iiid  of  N'ortli  ;ind  Soutli  Cnrolina 
cxcludoi  noil  ri'otcslants  l"i-oni  all  oi-  from  the  highest  olfices; 
New  Jers«'y  atnl    \'<'i-inon1    pcoviili'd   oidy   1h;i1    no   I'coti'stanls 

■■Tin-     liiHtdi-y     of     li'KiHlalioii      in  r.'l    v.  'l":ivl«>r,  !•  ( 'r.incli.    C! ;   mIso  .-ic- 

Viryiiiiii     \v:ih     cojiiiilicaliMl     liv     (lie  ( oiint  (if  lo{j;i.sliition  of   1784  in   Rey- 

.(infiHcatinii     <if     ^rlclic     lainls.       Sec  iiol'ls    v.    Uriitfil    States,    98    U.    S. 

Turpin.v.   Locket,  0  Call.   113;   Ter-  14.1. 


§  462  RECOOXITFOX    OF   KELTOIOX.  4(,| 

should  be  excluded;  in  Massachusetts,  Dclawan',  iimi  Miiiylaml 
the  oath  required  of  all  officf'rs,  in  I'l-iinsylvania  and  V«*riin*nt 
the  oath  required  of  members  of  the  lefjislature,  was  such  that 
it  could  be  taken  by  Christians  only.  Provisions  of  this  nature, 
while  they  do  not  impair  personal  liberty  or  afffct  rij,'hts  of 
property,  discriminate  on  account  of  religion.  The  constitution 
of  the  United  States  provides  that  no  reli*?ious  test  shall  cvi-r 
be  required  as  a  qualification  to  any  office  or  public  trust  under 
the  United  States."  The  disqualification  of  non-Christians  has 
disappeared  everywhere;  and  it  is  inconsistent  with  a  i)rovision 
that  "no  person  shall  be  denied  any  eivii  or  political  ri<;ht. 
privilege  or  capacity  on  account  of  his  religious  opinions."  In 
the  absence  of  such  a  provision,  it  was  held  in  .Massachusetts 
and  Illinois,  that  an  atheist  may  be  disqualified  from  acting 
as  a  witness,"^  but  the  insertion  of  the  provision  in  the  Illinois 
constitution  of  1870  was  held  to  abrogate  the  former  rule.^ 
In  Maryland,  North  Carolina,  Tennessee,  Mississippi.  an<l  Ar- 
kansas, atheists  are  excluded  from  office  by  constitutional  pro- 
visions; and  this  is  conclusive,  since  the  federal  con.stitution 
does  not  protect  the  right  to  hold  office  under  the  states.  If 
the  provision  were  not  constitutional,  but  statutory,  there  can 
be  no  doubt  that  a  discrimination  against  atheists  with  refer- 
ence to  the  right  to  hold  office,  would  be,  under  probably  every 
state  constitution,  an  invalid  discrimination  on  account  of  re- 
ligious opinion. 

§  462.  RecogTiition  of  religion.— The  state  avails  itself  (tf 
the  existence  of  religious  sentiment  among  the  people,  or 
acknowledges  those  sentiments  in  official  utterances,  in  tlie 
following  matters:  the  reference  to  the  divine  power  in  the 
constitutions;  the  proclamation  of  thanksgiving  days;  the  use 
of  the  religious  sanction  for  the  oath,  leaving  a  right  of  affirm- 
ation where  the  oath  is  objected  to;  and  the  recognition  of 
the  religious  celebration  of  marriages.  In  these  eases  the  state 
neither  compels  nor  restrains,  and  its  relation  to  religion  may 
be  described  as  purely  moral;  hence  these  practices  are  not  re- 
garded as  objectionable  on  constitutional  grounds.  The  «'m- 
ployment  of  chaplains  in  penitentiaries,  in  the  U.  S.  army  and 
navy,  in  state  militias,  in  Congress,  and  sometimes  in  l.'Lrisla 

6  U.  S.  Constitution,  Art.  VI,  §  3.      104;      Central      Military     Tra.t      v. 

7  Thurston    v,    Whitney,    2    Cush.     Eocka follow,  17  111.  .'i41. 

sHrouek    v.    People.    134    111.    139. 


492  CIVIL  LIBERTY:     EELIGIOUS  ANDPOLITICAL.  §  463 

tive  assemblies  of  the  states,  is  sanctioned  by  long  acquiescence, 
although  the  abandonment  of  the  practice  in  the  majority  of 
state  legislatures  indicates  some  doubt  as  to  its  propriety;  it 
does  not  involve  any  question  of  the  police  power. 

§  463.  The  Bible  in  public  schools.— The  use  of  the  Bible  in 
the  public  schools  presents  a  constitutional  question  especially 
in  those  cases  in  which  the  child  is  required  to  attend  during 
the  reading  from  the  Bible.  Religious  liberty  would  seem  to  re- 
quire that  pupils  at  the  request  of  their  parents,  or  otherwise 
for  good  cause,  must  be  excused  from  attendance,  and  this  is 
recognised  by  the  practice  of  many  states.''  In  Maine,  how- 
ever, a  different  view  was  taken:  where  a  Catholic  child  was 
expelled  for  refusing  to  read  the  Protestant  version  of  the 
Bible,  it  was  held  that  the  parent  had  no  cause  of  action  ;^*'  and 
in  an  action  by  the  child  it  was  further  held  that  the  adoption 
of  the  Protestant  Bible  as  a  reading  book  in  the  public  schools 
is  an  act  of  the  school  authorities  which  the  courts  cannot 
control,  and  that  the  liberty  of  religion  and  the  equality  of 
denominations  is  not  thereby  violated.' ^  The  reading  from  the 
Bible  where  attendance  is  not  compulsory  raises  no  question 
of  the  police  i)ower;  it  has,  however,  been  questioned  on  the 
ground  that  the  taxpayer  is  thereby  compelled  to  support  re- 
ligious Avorship.  This  contention  has  been  sustained  in  Wis- 
consin,'^  and  the  Supreme  Court  of  Ohio  has  at  least  intimated 
a  like  opinion.'-'  In  Nebraska  it  is  said  that  "whether  it  is 
|irii(lciit  or  politic  to  permit  Bible  reading  in  the  public  schools 
is  a  (|uestion  for  the  school  authorities  to  determine  hut 
whetlici-  the  practice  of  Bil)lf  i-cading  has  lakcii  the  form  of 
.sectarian  instruction  in  a  particular  case  is  a  question  for  the 
courts  to  dcliTiiiine  npon  evidence.""  It  is  hardly  possible 
to  contend  th.it  i-cading  from  tlie  l>il)lc  unless  carefully  re- 
stricted to  |iui(l.\-  hislofical  passages,  is  not  a  religions  oxov- 
cisc,  whcthci-  scctjirian  <>v  not.  A  liberal  interiu-etation  of  the 
constitntion  jnight   aih)\v  such   non-seclariau   religious   iustruc- 

»  Nortli  V.   lioanl   nt'  TniHtccH,    \'.'>~  "  I  )tin:iliiic     v.     liidKinls,     ;iS     Me. 

111.    unO;    Moore    v.    Monroe,    (">  I     l:i.  :'.7'.>. 

'.W7 ;    Spiljcr    v.     Wdliiirn,    Ml     M;iss.  '-SI.'Uo    ox    rcj.    Weiss    v.    District 

I'J7.  Hoani,  7()  Wis.  177. 

•  "  I  )(iii;iti(i<'     \.     I{icliar<lH,     US     Me.  ':'•!'.(  pan  I    of    IvIik-mI  imi    v.    .Minor, 

:{7(i.  'j:;  oii.  st.  I'l  i. 

n  .state  V.  Seheve,  9.T   N.   W.    16<>. 


§  464       PROTECTIVE  AND  RESTKJCTIVE  LEGISLATION.  4<j;i 

tioii  in  the  public  scliools  jis  is  impliiMl  in  r.-jidin^r  f,.,,i„  tli.- 
Bible  without  comment,  provided  no  special  funds  are  expended 
for  that  purpose;  but  would  not  allow  the  forcinjr  of  such  in- 
struction upon  children  against  the  wishes  (.f  tii.'ir  parents; 
and  this  is  the  view  taken  in  most  of  the  states.  In  tin-  stat.- 
of  Washington  the  use  of  the  Bible  in  the  i)ublic  schools  is 
expressly  i)r()liil)ited ;  IMississippi,  on  the  otlu-r  hand,  provides 
that  the  Bible  shall  not  be  excluded  from  the  pnl)lic  schools. 

i^  464.  Protective  and  restrictive  legislation— a.  Special 
protection  of  religion.— Under  this  head  should  be  mentioned: 
exemption  of  the  property  of  religious  societies  from  taxation; 
the  protection  of  religious  meetings;  and  the  laws  against  blas- 
l)hemy.  Of  these,  the  exemptions  from  taxation  do  not  fall 
under  the  police  power;  the  protection  of  religious  meetings 
from  disturbance  by  disorderly  conduct  or  by  the  peddling  of 
goods  is  regarded  as  a  regulation  in  the  interest  of  peace  and 
order  in  public  places,  and  is  upheld,  as  a  like  regulation  for 
the  protection  of  anj^  kind  of  secular  gathering  would  be  up- 
held ;i^  the  provisions  against  blasphemy  will  be  consid. 'n-d 
presently. 

b.  Restraint  of  religious  activity  in  Ix'half  of  the  pul)lie 
welfare. — There  are  two  kinds  of  legislation  that  would  fall 
under  this  head :  measures  for  the  repression  of  practices 
deemed  disorderly  or  dangerous;  and  the  regulation  of  reli- 
gious societies,  chiefly  with  reference  to  their  property  rights. 
This  legislation  will  also  be  considered  separately. 

The  essence  and  value  of  the  constitutional  guaranty  lies  in 
two  points:  first,  that  religious  belief  as  such,  and  its  peaceful 
and  orderly  manifestation  in  worship  and  precept,  ma\-  not  be 
treated  as  a  menace  to  the  peace  and  welfare  of  the  eomnnniity. 
or  as  a  possible  cause  of  disorder;  and  second,  that  whatever 
restraint  is  placed  upon  religious  activity,  through  rules  of 
property  or  otherwise,  must  be  applied  to  all  denominations 
alike,  in  order  to  avoid  the  preference  ami  disei-iiiiin.ition 
Mdiich  the  constitutions  forbid. 

;^  465.     Blasphemy.— Blasphemy,  according  to  BlaeUstone,'" 

m  Meyers   v.   Baker,    120    Hi.   .^)67 ;  v.    Stovall.    lO."^    N.   C    tKi.    s   S.    10. 

Com.     V.    Bearse,     132     Mass.    542;  900;    see,    also.    Com.    v.    Bacon,    l.'t 

State     V.     Gate,     58     N.     H.     240;  Bush   (Ky.)   210. 
State  V.  Read,  12  Rh.  1.  137;   State  i«  Book  IV,  p.  .'59. 


494  CIVIL  LIBEETY:     RELIGIOUS  AND  POLITICAL.  §  465 

cousists  iu  dfuyiug  the  being  or  providence  of  God,  in  con- 
temelioiis  reproaches  of  Jesus  Christ,  in  profane  si-offing  at  the 
holy  scriptures,  or  exposing  them  to  contempt  and  ridicule.   It 
is  an  offense  at  common  law,  but  the  courts  could  and  should 
regard  the  common  law  rule  as  abrogated,  if  or  in  so  far  as  it 
is  inconsistent  with  the  constitution.    In  America,  some  notable 
cases  have  been  decided  imder  the  common  law  or  under  earlier 
statutes,  in  New  York,  People  v.  Ruggles,i'  in  1811;  in  Penn- 
sylvania, Updegraph  v.  Com.,is  [^  is22;  in  DelaAvare,  State  v. 
Chandler,! »  in  1837;  and  in  :Massachusetts,  Com.  v.  Ivneeland,^^ 
in  1838.    In  these  cases  the  opinion  was  expressed,  that  a  wil- 
ful and  malicious  denial  of  God,  or  a  similar  attack  upon  Chris- 
tianity, was  sufficient  to  constitute  the  offense,  one  of  the  argu- 
ments relied  \\\nm  being  that  Christianity  is  part  of  the  law  of 
the  lan(i.     Tn  .Massachusetts,  the  following  words  were  held  to 
be  blasphemous:     " Universalists  believe  in  a  god,  which  I  do 
not;  but  believe  that  their  god,  with  all  his  moral  attributes 
(aside  from  nature  itself),  is  nothing  more  than  a  mere  chimera 
of  their  own  imagination."    The  court  admitted  that  a  person 
might  simply  and  sincerely  avow  his  disbelief  on  proper  and 
suitable  occasions,  but  held  that  it  was  not  necessary,  in  order 
to  constitute  blasphemy,  as  was  contended  for  by  a  dissenting 
judge,  that  llif  denial  sliould   involve  calumny,  detraction  or 
abusive  language.     In  all   llic  other  eases  the  language  used 
was  abusive  and  indecent.     The  Massachusetts  decision  is  not 
consistent  with  present  ideas  of  freedom  of  conscience  and  its 
expression,  nor  is  it  conceivable  that  the  Kneeland  case  would 
be  decided   in   Massachusetts  to-day   as   it  was  decided  sixty 
years  ago.     Public  sentiment  and   long  continued  i)ractice  of 
toleration  niust  be  regarded  as  conclnsive  upon  the  true  inler- 
prt'tation  of  the  constitutional  rrccdoni  of  religion,  whicli  raii- 
liot    ln'  in'cVoc;il)l_\-   lixcd  1)\-  one  decision   felldei-ed   by  a   divided 
court,  ;iiid  never  since  acted  ui)on.     Tiie  decisions  in  the  otluT 
cases   c;iii    be   sustained    witliont   subscribing   to    ;il!    Ili;it    was 
said  by  Hie  coui-ts  in  sni»por1  of  llieni.     Tlie  freedom  of  religion 
demands   llie    freedom   <d'  ;ittack;   t>ut    the   right   of  ;itt;i.d<    ;ind 
public    propaganda    (lo<'s    not   justify    the    violation    of    public 
order  and  coMinion  decency.     The  olVense  of  blasphemy,  to  l)e 
consistent  with  tiie  constitution,  should  not  be  held  to  be  coni- 

17  H  .idhiiH.  JiKi.  '"-  "'"'''•  •'••'••'• 


§  4f)(j  REGULATIVE    LECISLATIOX.  495 

plete  without  calumny,  detraction  oi-  abusive  languaj^c;  it 
should  in  (illici-  words  l)e  treated  like  profaneness,  upon  prin- 
ciples ;ipi)li('able  to  ;ill  nuisances. 

g  43G.  Regulative  legislation.— The  statutes  of  the  different 
r.tates  show  a  considerable  amount  of  regulative  legislation 
regarding  matters  of  religion.-^  The  bulk  of  it  deals  with  the 
pi'operty  rights  of  religious  societies.  The  exercise  of  religion 
practically  requires  the  use  of  property,  but  it  does  not  follow 
that  its  free  exercise  involves  uncontrolled  property  relations. 
Where  property  is  placed  in  the  service  of  religion,  it  is  done 
almost  universally  through  the  machinery  of  organised  asso- 
ciation; property  devoted  to  religious  purposes  is  regularly 
j)roperty  belonging  to  some  society.  The  holding  of  such  prop- 
erty practically  requires  either  a  trust  or  incorporation.  Trusts 
as  well  as  corporations  are  subject  to  legislative  control,  with 
this  difference,  that  trusts  are  free,  unless  specially  restrained, 
while  corporations  require  positive  legislative  sanction.  The 
statutes  of  all  the  states  have  made  provision  for  the  formation 
of  religious  societies  as  property  holding  bodies.  They  are  not 
always  called  corporations ;  in  some  states  a  distinction  between 
incorporated  and  unincorporated  societies  is  recognised,  and 
in  one  state,  Virginia,  the  grant  of  corporate  charters  to 
churches  is  forbidden.  But  practically  the  societies  formed 
under  statutory  provisions  enjoy  facilities  for  exercising  prop- 
erty rights  which  give  them  substantially  a  corporate  charac- 
ter. In  providing  for  their  formation,  the  statutes  to  a  great 
extent  regulate  the  organisation  of  the  societies,  requiring  a 
minimum  number  of  members,  specifying  the  number  of  trus- 
tees, providing  for  their  election,  &c.  Such  regulation  operates 
practically  as  a  restraint,  but  is  hardly  felt  as  such ;  for  the 
statutes  are  generally  framed  for  the  convenience  and  accom- 
modation of  the  societies,  and  not  for  their  control.  Often  the 
plan  of  organisation  peculiar  to  the  church  is  adopted  or  sanc- 
tioned by  the  statute.^^  Moreover  societies  may  generally  or- 
ganise themselves  irrespective  of  the  statutory  provisions, 
placing  their  property  in  the  hands  of  trustees  subject  to  the 


21  See    W.    II.    Roberts,    Laws    re-  ~-  See   the   statutes   of   New   York 

lating      to      religious      corporations,     applicable     to     cliflferent     denomina- 
Philadelphia,  1896.  tions. 


496  CIVIL  LIBERTY:     RELIGIOUS  AND  POLITICAL.  §466 

general  rules  of  equity  and  waiving  the  possible  advantages 
of  corporate  capacity.-^ 

There  are,  however,  statutory  provisions  evincing  a  clear 
legislative  policy  to  control  or  restrain  the  holding  of  property 
by  religious  organisations.     The  strongest  provision   of  this 
character  is  probably  to  be  found  in  §  26  of  the  Act  of  Con- 
gress of  March  3d,  1887,  requiring  that  lands  of  the  Mormon 
church  should  be  held  by  trustees  appointed,  on  the  nomination 
of  church  authorities,  by  the  probate  court  of  the  territory. 
Such  a  provision,  applied  to  only  one  denomination,  is  not  con- 
sistent   with    religious    equality.     In    all    states  a  maximum 
amount  of  property  is  fixed,  beyond  which  acquisitions  are  for- 
bidden; often  also  the  power  to  take  by  devise  or  bequest  is 
limited ;  in  :Mississippi  the  Constitution  prohibits  all  devises  of 
real  property  to  religious  corporations  and  associations.   These 
provisions  are  derived  historically  from  the  English  statutes 
of  mortmain,  and  are  to  the' present  day  frequently  designated 
by  that  name.     Sometimes  they  are  confined  to  corporations, 
so  that  the  limitation  can  be  escaped  by  avoiding  corporate 
organisation.^^     Whether  they  are  regarded  as  manifestations 
of  the  police  power  or  as  rules  of  property,  or,  in  so  far  as  they 
affect  corporations,  as  conditions  annexed  to  the  grant  of  cor- 
porate capacity,  their  constitutionality  has  never  been  ques- 
tioned; and  it  may  therefore  be  safely  stated  that  religious 
liberty  does  not  preclude  the  regulation  or  restraint  of  the 
right  to  hold  property  for  religious  purposes,   and   does  not 
inii)air  the  well  understood  and  historically  established  power 
of  the  state  over  the  corporate  holding  of  property  or  the  hold- 
ing  of  property  upon   charitable   and    eleemosynary   trusts.^^ 
Whether  freedom  of  rc^ligion  requires  freedom  of  association 

!!■■»  See  Alden  v.  St.  Potor's  Parish  es   affected.      Differeiu-es   of    liinita- 

Churcli,  ISH   III.  (iiU.  (inn    of    property    capacity    imposc.l 

-1  Allien     V.     St.     I'eter'K     Parish  hy    the    lej^islatun'    wonhl    Hccin     to 

("Imrch    158  III.  631.  constitute  a  discrimination   in   favor 

•.:r.  Under  the  statutes  of  New  of  the  chun-hes  havinj;  a  larfjor  ca- 
Vork,  jtrior  to  the  {rencral  provision  jjacity,  inconsistent  with  constitu- 
niadc  liy  chap.  35,  General  Laws,  §  tional  <'c|iiality.  Thr  first  }j;ciicral 
12  difTorent  limits  were  fixed  to  statute  of  New  York  for  the  hold- 
Ihe  amount  of  |>ro|)erty  which  in-  in^  of  property  by  churches  (vVct 
corporated  churches  of  different  de-  April  (5,  17S4,  chap.  IS)  recited  the 
iiominationH  were  allowed  to  hold,  "illilteral  and  partial  distribution 
Pr(d)ably  sindi  limitationH  ha<l  been  of  charters  of  incorporation  to  re- 
fixed  with  the  consent   of  the  church-  li^ious   societies." 


§  467  L1M1T8    OF    KELlUiOUS    FREEDOM.  497 

for  religious  purposes,  apart  from  the  holding  of  property,  is 
a  cpiestion  upon  which  the  courts  have  not  passed.  The  right 
of  association  is  enjoyed  and  exercised  to  the  fullest  extent 
without  any  attempt  at  legislative  restraint  or  interference. 
It  may  be  safely  asserted  that  legislative  restraint  on  the  right 
of  association  for  religious  purposes,  which  would  in  any  ma- 
terial respect  hamper  the  free  exercise  of  religion,  or  favor  one 
denomination  against  the  other,  or  make  the  right  to  associate 
dependent  upon  the  arbitrary  discretion  of  administrative  offi- 
cers, would  be  unconstitutional. 

§  467.     Limits    of    religious    freedom.— The    constitutional 
guaranty  of  religious  liberty  covers  above  all  the  two  cardinal 
points  of  worship  and  doctrine,  the  two  forms  in  which  the 
uncontrollable  facts  of  faith  and  opinion  find  their  principal 
outward  expression ;  it  includes  secondarily  also  customs,  prac- 
tices and  ceremonies,   which,   even  where  they  do  not  form 
directly  a  part  of  worship,  are  prescribed  by  religion.     That 
this  liberty  does  not  altogether  supersede  the  operation  of  the 
police  power  is  recognised  by  the  constitutional  proviso  found 
in  many  states^^'  that  it  shall  not  excuse  acts  of  licentiousness, 
or  justify  practices  inconsistent  with  the  peace  and  safety  of 
the  state,  a  proviso  which  ma}''  be  implied  where  it  is  not  ex- 
pressed.-"    Thus  acts  of  cruelty  or  debauchery  would  be  prop- 
erly repressed  under  the  police  power,  though  demanded  by 
some  religion  as  a  form  of  Avorship.     In  the  United  States, 
legislation  punishing  polygamy  was  upheld,  though  the  ^lor- 
mons   conscientiously   believed   that   their   religion   sanctioned 
and  commended  the  practice.    The  Supreme  Court  emphasised 
the  distinction  between  opinion  and  precept  on  the  one  hand, 
and  practices  affecting  social  order  on  the  other.    Quoting  with 
approval  Jefferson's  words  "that  it  is  time   enough   for  the 
rightful  purposes  of  civil  government  to  interfere  when  prin- 
ciples break  out  into  overt  acts  against  peace  and  good  order," 
it  held  that  Congress  was  deprived  of  all  legislative  power  over 
mere  opinion,  but  was  left  free  to  reach  actions  which  were  in 
violation  of  social  duties  or  subversive  of  good  order-^** 

§  468.    Practices  and  doctrines  in  conflict  with  public  safety 

20  Stimson  American  Statute  Law  2*  Reynolds    v.    United    States,    98 

1,  §  41.  U.  S.  145. 

27  Reynold    v.    United    States,    98 
U.  S.  145. 

32 


498  CIVIL  LIBERTY:     EELIGIOUS  AND  POLITICAL.  §468 

and  order.  — The  principles  which  govern  the  exercise  of  the 
police  power  for  the  protection  of  public  safety,  morals  and 
good  order,  must  determine  the  extent  of  possible  state  inter- 
ference with  religious  practices. 

Thus  it  would  seem  that  religious  freedom  should  not  pre- 
vent the  ordinary  exercise  of  the  police  power  over  assemblies 
m  public  places  in  the  interest  of  peace  and  order. ^^  In  a  num- 
ber of  cases,  municipal  ordinances  have  been  declared  invalid 
which  regulated  street  parades  in  such  a  manner  as  to  interfere 
with  the  processions  and  exercises  of  the  salvation  army.^'^  All 
these  cases,  however,  were  distinguished  either  by  some  ele- 
ment of  discrimination,  or  by  the  vesting  of  arbitrary  discre- 
tion in  administrative  officials,  which  would  have  vitiated  the 
ordinances  if  no  question  of  religious  liberty  had  entered  into 
them.  It  has,  however,  been  recognised  that  processions  at- 
tended with  noise  or  serious  disturbance  of  traffic  may  be  pro- 
hibited."^i  Such  regulations  should  be  framed  in  terms  wide 
enough  to  cover  other  than  religious  parades  or  processions, 
and  under  no  circumstances  should  the  religious  character 
of  the  assembly  be  treated  as  a  cause  of  disturbance. 

Another  question  arises  in  connection  with  the  practice  of 
Christian  Science;  it  has  been  held  Hint  under  the  power  to 
protect  the  public  health  the  i)rofessional  practice  of  faith 
cure  without  a  license  may  be  i)r<>liibited  ;•'-  but  also  thai 
prayer  and  encouragement  and  direction  of  the  thoughts  of 
the  p;i1ient  without  recommending  or  administering  any  drug 
or  medicine,  or  giving  any  course  of  ])hysical  ti-entment,  is 
not  covered  by  tlie  statutes  I'egulatiiig  the  ])raeli('e  of  medi- 
cine.•'•*  The  private  non-professional  application  of  faith  cure 
is  probably  protected  by  th(^  guaranty  of  religious  freedom.  In 
England  and  New  Yorl<  tlie  neglect  to  c;ill  in  medical  aid  is 
under  pertain  eii'cumstanees  made  a  ci-inMnnl  oCreiise.'"  A  stat- 
nte  oi"  this  kind,  especially  if  exception  is  niadi'  \'<>y  llie  ease  of 

2"  §  174,  supra.  People  ex  rol.  Cartinill  v.  Rochoatcr, 

:>'>  Ro  Frazeo,  63  Mifh.  .396;  State  14  Ilun  166. 

V.   DeriiiK.  S4  Wis.  r^Hr,,  10  L.  R.   A.  ■'-•  Slalc   v.   Riiswell.   40    \ob.    l.'5S, 

HM;     Anderson     v.     Wollintrtoii,      10  i:4  1j.  R.  A.  6S. 

KfuiB.    173,    'J    L.    I{.    A.    110,    1888;  •"' State  v.  Mylo.l.  I'O  U.   1.6312,41 

Chicapo  V.  Trotter,  1.36  111.  430.  An-I  !-.    U.   A.  428.     See  §   133,  xupra. 

Hee  Com.  v.  PlaiHte.l,  148   Mass.  37.'"),  •31    an<l   3'J   Vict.   cli.    122,   §   37; 

2  L.  R.  A.   142.  Retjina     v.     Hownes,     13    Cox    C.    C. 

■•'1  State   V.    White,   64    N.    TI.   48;  111,   \.   V.   I'.nnl  Cn-I..,  §  288;   Peo- 
ple V.   I'ierson,  68  N.  E.  243. 


§  469  CIVIC  AND  RELIGIOUS  DUTIES.  499 

the  patient  himself  objecting  to  medical  treatment,  may  be  sus- 
tained either  on  the  ground  that  the  obligation  to  cmII  in 
medical  aid  is  not  inconsistent  with  the  right  to  i-csoil  to 
other  modes  of  healing,  or  on  the  ground  that  Die  state  may 
protect  the  patient  against  the  religious  prejudices  of  those 
having  charge  of  him. 

Some  difficulty  in  assigning  the  proper  limits  to  religious 
freedom  may  be  experienced  in  dealing  with  incitements  to 
illegal  acts  by  ministers  or  church  officers.  The  distinction 
recognised  in  Reynolds  v.  United  States,^-''^  between  opinion 
and  precept  on  the  one  hand,  and  i)ractice  on  the  other, 
becomes  somewhat  unsatisfactory,  since  the  direct  pro- 
curement of  crime  is  generally  regarded  as  equivalent  to 
the  act  itself.  The  acts  of  Congress  against  polygamy, 
however,  carefully  refrained  from  dealing  with  doctrine 
or  preaching.  Perhaps  the  constitutional  aspect  is  this: 
the  doctrine  is  free  as  long  as  it  confines  itself  to  general 
precepts  or  inculcations  of  duty,  but  becomes  subject  to  the 
criminal  law  where  it  aims  to  bring  about  individually  con- 
templated acts  on  the  part  of  the  persons  addressed,  and  is 
followed  by  such  acts  as  a  direct  consequence  of  the  words  oi- 
influence  used ;  the  closeness  of  the  connection  between  ex- 
hortation and  crime  would  thus  be  the  determining  test.-'''' 

§  469.  Conflict  between  civic  and  religious  duties.— An- 
other difficulty  arises  in  connection  with  the  < question  in  how 
far  the  performance  of  civic  duties  may  be  refused  on  the 
plea  of  religious  prohibition.  The  constitutions  provide  that 
religious  freedom  shall  not  excuse  practices  inconsistent  with 
the  peace  or  safety  of  the  state ;  but  such  a  provision  does 
not  cover  cases  where  the  peace  and  safety  of  the  state  are 
not  concerned,  and  where  the  conduct  complained  of  is  not 
a  positive  practice,  but  an  omission  to  act.  Two  cases  will 
illustrate  the  difSculty. 

In  Ferriter  v.  Tyler^"  a  number  of  Catholic  parents  had 
asked  a  school  committee  to  excuse  their  children  from  attend- 
ance at  school  on  Catholic  holidays.     The  recpiest  was  refused, 

35  98  U.  S.  145.  a  manner  as  to  endanger  the  public 

30  The   German   Criminal   Code    (§  peace.      The  French   Penal  Code    (§ 

130a)    punishes    a    minister    of    re-  201-203)    even   forbids  the  criticism 

ligion,    who    in    the   exercise    of   his  or  censure  of  the  government  or  of 

lalliiio-   discusses  political   affairs   or  governmental   acts, 
publishes   i>olitical    writings   in    such  37  48  Vt.  444. 


500  CIVIL  LIBERTY:     RELIGIOUS  AND  POLITICAL.  §  469 

and  when  the  children  stayed  away  on  Corpus  Christi  day, 
they  were  expeUed,  and  reinstatement  refused,  except  upon 
condition  of  a  promise,  that  the  rules  of  the  school  should  be 
complied  with  in  future.  Thereupon  the  parents  brought 
an  action,  which  however  was  dismissed.  In  sustaining-  this 
decree,  the  Supreme  Court  said:  "Article  III.  [of  the  con- 
stitution, guaranteeing  religious  freedom]  was  not  designed 
to  subjugate  the  residue  of  the  constitution  and  the  impor- 
tant institutions  and  appliances  of  the  government  provided 
by  the  enacted  laws  for  serving  the  highest  interests  of  the 
public  as  involved  in  personal  condition  and  social  relations, 
to  the  peculiar  faith,  personal  judgment,  individual  will  or 
wish  of  any  one  in  respect  to  religion,  however  his  conscience 
might  demand  or  protest.  In  that  respect  it  is  im])lied  that 
while  the  individual  may  hold  the  utmost  of  his  religious 
faith,  and  all  his  ideas,  notions  and  preferences  as  to  religious 
worship  and  practice,  he  holds  them  in  reasonable  subservi- 
ency to  the  equal  rights  of  others  and  to  the  paramount 
interests  of  the  public  as  depending  on  and  to  be  served  by 
general   laws  and  uniform   administration." 

In  Simon's  Executors  v.  Gratz^s  the  plaintiff  asked  for  a 
continuance  of  his  case  on  the  ground  that  he  had  scruples  of 
conscience  against  appearing  in  court  or  attending  to  any 
secular  business  on  Saturday.  The  continuance^  was  not 
granted,  and  in  sustaining  this  decision  the  Supreme  Court 
said:  "The  religious  scruples  of  persons  concerned  with  llic 
administration  of  justice  will  receive  all  due  indulgence  that 
is  comi)atiblc  with  the  business  of  the  government;  and  had 
circumstances  permitted  it,  this  cause  would  not  have  been 
ordered  for  trial  on  the  Jewish  Sabbath.  But  when  a  con- 
tinuance for  conscience'  sake  is  claimed  as  a  right  and  at  the 
expense  of  a  Term's  delay,  the  matter  assumes  a  dilTcrciit 
aspect." 

Conflicts  siich  as  those  mentioned  can  as  a  rule  be  avoided 
by  a  projxT  administration  ()\'  existing  laws,  and  it  would 
seem  to  be  the  constitutionni  duly  of  ]MiMic'  nnlliorilie's  to 
rceoneilc,  .'is  fiir  ;is  tbt-ir  discfd  luii  ;illo\vs.  civic  ;mi(I  religious 
obligation.  A  rcason;il>lc  rcgnrd  should  be  paid  in  the  recpiire- 
nient  of  public  service  to  religious  scruples,  but  no  religious 

88  2  Pa.  412. 


§  470  SUNDAY   LAWS.  501 

sect  should  be  allowed  to  claim  ahsolut*'  exemption  irom  a 
general  civic  duty.  Freedom  of  religion  being  a  constitutional 
right,  it  would  seem  to  be  the  proper  function  of  the  courts 
to  determine  what  is  reasonable  on  either  side.  This  prin- 
ciple is  not  inconsistent  with  anything  that  was  said  either 
in  the  Vermont  or  in  the  Pennsylvania  case,  but  it  may  be 
doubted  whether  it  was  correctly  applied  in  Vermont ;  for 
the  absence  of  a  limited  number  of  children  for  six  days  in 
the  year  (which  was  all  that  was  claimed)  can  hardly  be 
said  to  disarrange  the  public  school  system.  Conscientious 
scruples  against  the  bearing  of  arms  cannot  relieve  from 
general  military  duty;  some,  but  not  all,  states  excuse  from 
service  in  the  militia  on  that  ground,  but  only  upon  payment 
of  a  proper  equivalent,^^  and  it  is  not  claimed  that  the  ex- 
emption is  a  matter  of  constitutional  right.  The  constitution 
of  Tennessee  provides:  "No  person  shall,  in  time  of  peace, 
be  required  to  perform  any  service  to  the  public  on  any  day 
set  apart  by  his  religion  as  a  day  of  rest.  "^"^ 

$  470.  Sunday  laws.— It  has  been  shown  before  that  the 
enforcement  of  Sunday  rest  is  regarded  as  a  measure  of 
purely  secular  and  civil  character,  and  as  such  its  constitu- 
tionality is  firmly  established.^^  It  is  however  obvious  that 
the  institution  of  the  Sabbath  rests  historically  upon  religious 
injunction,  and  the  connection  of  the  secular  law  with  the 
law  of  Christianity  has  been  judicially  recognised.^2  j^ 
Minnesota  and  Dakota  the  acts  forbidden  are  described  in  the 
statute  as  serious  interruptions  of  the  repose  and  religious 
liberty  of  the  community ;  it  seems  to  be  thereby  implied  that 
religious  liberty  involves  a  claim  to  have  others  respect  one's 
religious  feelings  and  practices.  The  argument  of  religious 
liberty  and  equality  has,  on  the  other  hand,  been  urged 
against  the  Sunday  laws  on  behalf  of  those  who  observe 
another  day  as  a  day  of  rest.  It  has  been  replied  to  this 
argument  that  the  law  does  not  interfere  with  the  religious 
observance  of  any  other  day.'*^  A  stronger  argument  may 
be  found  in  the  necessity  of  uniformity  of  the  day  of  rest, 
if  peace   and   quiet   is  to   be   secured.     If  one   day   is  to   be 


39  New  York   1  Rev.  Stat.  p.   93,         4i  §§  184-186,  supra. 

§  5.  42  State  V.  Ambs,  20  Mo.  214. 

40  Constitution, '  Art.    XT,    §    15.  43  Specht  v.  Com.,  8  Pa.  St.  312. 


502  CIVIL  LIBERTY:     RELIGIOUS  AND  POLITICAL.        §  47I 

selected,  it  is  a  recommendation  rather  than  an  objection, 
that  the  day  chosen  conforms  to  the  voluntary  practice  of  the 
vast  majority  of  the  people,  since  the  choice  should  cause  as 
little  inconvenience  as  possible.  Where,  however,  the  pur- 
suit is  not  carried  on  in  public,  the  reason  for  the  uniformity 
fails,  and  the  claims  of  those  who  observe  another  day  are 
entitled  to  consideration.  In  a  number  of  states  persons 
keeping  the  seventh  day  as  a  day  of  rest  (Jews  and  Sabbata- 
rians) may  Avork  on  Sundays  provided  their  work  do  not 
disturb  others.^^  An  exemption  of  this  kind  in  favor  of 
Jews  was  held  imconstitutional  in  Louisiana  as  granting 
special  privileges  to  a  class  of  the  community.'-"'  But  when 
we  consider  that  the  prohibition  of  work  carried  on  in  private 
is  justifiable  only  on  the  ground  of  protection  against  an 
unfair  advantage  over  those  who  rest,  it  is  clear  that  there 
is  no  valid  reason  for  the  prohibition  where  another  day  is 
observed,  and  that  on  the  contrary  such  prohibition  creates 
a  special  burden.  All  laws  should  scrupulously  respect  the 
principle  of  religious  equality,  and  as  experience  shows  that 
the  exemption  within  the  bounds  indicated  is  quite  feasible, 
it  should  be  recognised  as  a  constitutional  right. 

FREEDOM  OF  SPEECH  AND  PRESS.     §§  471-479. 

§  471.  The  constitutional  guaranty  and  censorship.  — The 
first  amendment  of  the  federal  constitution  provides  that 
Congress  shall  make  no  law  abridging  the  freedom  of  speech 
or  of  the  press,  and  an  analogous  provision  is  found  in  the 
constitution  of  every  state.  Freedom  of  speech  and  press 
aft-  thus  generally  treated  togetber  as  virtually  one  and  the 
same  right.  Viewed  from  the  standjioint  of  the  police  poM-er, 
liowevcr,  it  is  clear  that  speech,  unless  in  a  ])nblic  ass(>mbly, 
could  ncviT  1h'  contfollcd  in  tlic  same  iiiaiiiirr  ;is  the  pi-css. 
The  in'iiiling  jifrss,  oji  tlic  oilier  hand,  was  in  roiMiicr  limes, 
as  a  maltrr  of  course,  sul^jcclcd  to  the  most  .iinpli'  police 
coiiti'ol.  Till'  bistoi'y  of  tbis  control  is  set  lortli  in  a  note 
In  l\'.  r,l,ic|<si ,  ]7)2  as  I'ollows:  "Tlic  art  ol"  pcinling,  soon 
after  its   introduction,  was  looked   upon    (as  well    in    lOngland 

■••»  ArkaiiH.'iH,  I  inliioi;!,  Iu\v;i,  Ken-  Vork,  Oliio,  HIkxIo  IsImihI,  V'irj^iiii;i, 
tiicky,    .Maine,    MaHHacluiHcttH,    Mii'lii-      Wcsl    Vir^jiiiia. 

gan,    Nebraska,     New    Jersey,    New  ■•f' Shrovcport  v.  Levy,  26  La.  Ann. 

(;71. 


§  471  FEEEDOxM  OF  SPEECH  AND  PRESS.  503 

as  in  other  countries)  as  merely  a  matter  of  state,  and  subject 
to  the  coercion  of  the  crown.  It  was  therefore  regulated  with 
us  by  the  king's  proclamations,  prohibitions,  charters  of  privi- 
leges and  of  license,  and  finally  by  the  decrees  of  the  court 
of  star-chamber,  which  limited  the  number  of  printers  and 
of  presses  Avhich  each  should  employ,  and  prohibited  new 
publications,  unless  previously  approved  by  proper  licensers.'^ <* 
On  the  demolition  of  this  odious  jurisdiction,  in  1641,  the 
long  parliament  of  Charles  I.,  after  their  rupture  with  that 
prince,  assumed  the  same  powers  as  the  star-chamber  exercised 
with  respect  to  the  licensing  of  books,  and  in  1643,  1647,  1649 
and  1652  issued  their  ordinances  for  that  purpose,  founded 
principally  on  the  star-chamber  decree  of  1637.  In  1662  was 
passed  the  statute  13  &  14  Car.  II.  c.  33,  which  (with  some 
few  alterations)  was  copied  from  the  parliamentary  ordi- 
nances.^'''  This  act  expired  in  1679,  but  was  revived  by  statute 
1  Jac.  II.  c.  17,  and  continued  until  1692.  It  was  then  con- 
tinued for  two  years  longer  by  statute  4  Will.  &  M.  c.  24 ;  but 
though  frequent  attempts  were  made  by  the  government  to 
revive  it,  in  the  subsequent  part  of  the  reign,  yet  the  parlia- 
ment resisted  it  so  strongly  that  it  finally  expired;  and  the 
press  became  properly  free  in  1694,  and  has  ever  since  so 
continued."  Blackstone  thus  holds,  and  also  makes  the  state- 
ment in  the  text,  that  the  liberty  of  the  press  consists  in  laying 
no  previous  restraints  upon  publications,  and  this  is  in  accord- 


40  Hudson,   Treatise   of   the   Court  is  committed  until  there  be  a  refor- 

of  Star  Chamber  II,  §  III:     "Here  mation     and     satisfaction      of     the 

also  is  settled  by  precise  and  direct  wrong,    by    which    means    long    and 

orders   what   is   to   be   observed    for  tedious  suits  are  avoided,  and  pres- 

printings  of  books  by  the  company  ent   redress   ministered,    and   a    well 

of    stationers,    whereby    the    incon-  established     order     honorably     sus- 

veniences    that    might    arise    in    the  tained. ' '     See,  also,  Dasent,  Acts  of 

state   are   more   strictly   curbed   and  the  Privy  Council,   1543,  p.   120. 
governed    than    the    abuses    of    any  4t  This  statute  required  law  books 

other   trade  in   the  kingdom,   for  if  to    be   licensed    by    the    Lord    Chan- 

any  of  that  company  transgress  the  cellor   and   Chief  Justice,   books   on 

rule   and   order   which   in   the   reign  history    and    politics    by    the    Secre- 

of   Queen    Mary   was,    then,    by    the  tary   of  State,   and   all   other   books 

decree    of    this    court,    settled   "and  by    the    Archbishop    of    Canterbury, 

prescribed  unto  them,  any  that  will  or    the    Bishop    of    London,    or    the 

complain   maketh   oath   thereof,   and  Chancellor  of  one   of  the  two  uni- 

thereupon   an   attachment   is   award-  versities. 
ed,   and   he  apprehended   thereupon, 


504 


CIVIL  LIBEKTY:     KELIGIOUS  AXD  POLITICAL.         ?  471 


anee  with  the  statement  made  by  Chief  Justice  Mansfield  in 
The  King  v.  Dean  of  St.  Asaph  :^s  ''The  liberty  of  the 
press  consists  in  printing  without  any  previous  license,  sub- 
ject to  the  consequences  of  law."  This  view  is  also  endorsed 
by  American  courts,  and  freedom  of  the  press  means  there- 
fore primarily  the  unconstitutionality  of  censorship.-*'^ 

The  abolition  of  censorship  is  not  inconsistent  with  the  exer- 
cise of  a  certain  police  control  over  the  press.    Germany,  which 


•IS  3  T.  R.  428,  note. 

49  Com.  V.  Blanding,  3  Pick.  304, 
1825;  Eespublica  v.  Dennie,  4 
Yeates,  267,  1805. 

During  the  war  with  Spain  in 
1898,  a  censorship  was  exercised 
over  cable  dispatches,  and  the  Cliiof 
Signal  Officer  for  that  purpose  took 
constructive  possession  of  the  cables 
in  New  York.  In  his  report  to  the 
President  he  states  that  "the  au- 
thority under  which  the  Chief  Sig- 
nal Officer  exercised  censorship  rests 
on  that  proviso  of  law  which  vests 
in  the  chief  Signal  Officer  of  the 
.■\rniy  the  control  and  operation  of 
military  telegraph  lines,  and  as  soon 
as  these  cables  were  militarily  oc- 
cupied by  the  United  States,  it  fell 
within  his  province  to  fix  the  order 
of  business  and  to  decline  such  mes- 
sages as  were  prejudicial  to  the  mil- 
itary interests  of  the  United 
States."  It  appears,  however,  from 
the  statutes,  that  the  term  "\Iili- 
l.iry  Telegraph  Lines"  refers  in- 
\;iii;il>ly  Id  certain  lines  on  llie 
Indian  and  .Mexican  frontiers  i'ov 
the  connection  of  iniiit;ny  posts  and 
stations,  cnnstructeil,  owned  ;ind 
ojierated  by  the  fJovornment  in  lime 
of  peace  as  well  as  war.  CKev. 
Stat,  'i'itle  <i."i,  (••nlioilyiiig  tlie  act 
(.!'  .Inly  24,  lM(i().  and  IS  Stat,  at 
harg.-  388,  and  20  St.  at  Ti.  p.  219, 
anil  Army  IfegiilationH  IT")!*,  ITfio.) 
Xeitlier  in  tlie  statutes  nor  in  llie 
army  rogidations  is  tliere  any  pro- 
visiun    for   tlie   control    or    possesHion 


of  private  telegraph  lines  in  time 
of  war.  It  appears  from  the 
Chief  Signal  Officer's  Report  that 
the  Government  proceeded  in  the 
matter  with  the  consent  of  the  ca- 
ble companies,  that  the  Govern- 
ment 's  possession  was  merely  con- 
structive, and  that  the  actual  sr.- 
pervision  of  dispatches  was  entrusted 
to  the  superintendents  of  the  com- 
panies. The  companies  themselves, 
however,  would  have  to  show  some 
lawful  authority  to  justify  the  re- 
tention of  dispatches  against  the 
will  of  the  sender  or  without  his 
knowledge.  The  whole  question  is 
one  of  the  war  ])o\ver,  and  not  of 
the  police  power;  it  is  tlierefore 
sufficient,  in  this  connection,  to 
raise  the  question,  whether  under 
the  decision  in  ex  parte  Milligan  4 
Wall.  1,  the  war  jiowcr  of  the  pres- 
ident, unaided  by  statutory  author- 
ity, extends  to  the  control  of  private 
rights  in  places  whicii  are  not  the 
actual  theatre  of  war. 

AV'hat  unconstitutional  cnntml  of 
llie  press  would  mean,  can  lie  best 
nndci-slood  t'lcjin  a  liriel'  snniniary 
(d  the  Russian  law.  Pooks  of  a  cer- 
tain size  are  submitteil  to  the  cen- 
sor only  after  being  printed,  nnd  are 
either  perniilled  or  forbidden  as  a 
whole.  'I'lie  |ir(iiiibition  is  sidiject 
to  a  right  of  appeal  to  a  committee 
iif  ministers.  The  issue  of  a  period- 
ical publicntion  re(|uires  a  license, 
llie  grant  or  refusal  of  whi<'h  rests 
in     the    free    discretion    of    the    au- 


§471 


REGULiiTION  OF  THE  PRESS. 


505 


recognises  the  principle  of  the  freedom  of  the  press,  has  the  fol- 
lowing regulations :  Every  printed  publication  must  show  the 
name  of  the  printer  and  publisher,  periodical  publications 
also  the  name  of  a  responsible  editor.  The  sale  of  publica- 
tions in  public  places  (streets,  conveyances,  depots,  restau- 
rants) requires  a  license,  which  may  be  refused  only  for  rea- 
sons specified  by  law.  Publications  which  are  calculated  to 
give  offense  in  moral  or  religious  respects  may  not  be  sold 
in  this  manner,  and  a  list  of  the  publications  kept  for  sale 
must  be  submitted  to  the  authorities.  The  publisher  of  a 
periodical  publication  must  send  a  copy  of  each  number  to 
the  police  of  the  place  where  it  is  published.  Subject,  per- 
haps, to  an  obligation  of  payment  in  the  case  last  mentioned, 
all  these  regulations  seem  to  be  sustainable  under  our  con- 
stitutions. A  recent  statute  of  Pennsylvania  requires  every 
issue  of  a  newspaper  to  show  the  name  of  the  OAvner  or  pub- 
lisher, and  editor. 


thorities.  A  responsible  editor  must 
be  confirmed  by  the  government,  and 
can  be  removed  by  the  publisher  only 
for  cause.  The  sale  or  assignment 
of  the  rights  of  the  publisher  re- 
quires the  consent  of  the  govern- 
ment. The  application  for  a  li- 
cense is  accompanied  by  a  pro- 
gramme of  the  scope  of  the  publi- 
cation of  the  paper,  which  is  fre- 
quently limited  in  such  a  way  that 
political  discussions  are  altogether 
excluded.  The  license  is  either  free 
from  censorship  or  subject  to  it. 
Only  licenses  of  the  latter  class  are 
granted  in  the  provinces.  They 
mean  that  every  issue  of  the  paper 
must  be  submitted  to  the  censor 
and  approved  by  him,  before  it  is 
published.  Papers  free  from  cen- 
sorship are  limited  in  various  ways. 
Telegrams,  local  assembly  reports, 
and  court  news  are  even  here  sub- 
ject to  censorship.  News  regarding 
domestic  troubles,  army  movements, 
governmental  measures,  appoint- 
ments and  promotions  may  be  taken 


only  from  official  sources.  Some 
matters  are  altogether  excluded,  so 
information  regarding  the  internal 
condition  of  educational  institutions, 
religious  movements,  strikes,  anar- 
chists, even  reports  of  suicides.  Ques- 
tions regarding  time  and  wages  of 
labor,  and  its  relation  to  the  em- 
ployers, may  not  be  discussed.  Spe- 
cial topics  may  at  any  time  be 
placed  on  the  prohibited  list  by  spe- 
cial administrative  order.  A  paper 
is  always  subject  to  a  warning,  and 
after  three  warnings  it  may  be  tem- 
porarily or  permanently  suppressed. 
The  suppression  is  decreed  by  a 
committee  of  ministers,  and  forfeits 
the  license  of  the  editor  and  pub- 
lisher permanently.  Less  extreme 
administrative  punishments  consist 
in  the  prohibition  of  street  sales  or 
of  the  right  to  publish  advertise- 
ments. (See  article  the  Berlin 
"Nation,"  1901-1902,  No.  45.) 
Any  one  'of  this  long  list  of  re- 
straints violates  the  principle  of  the 
freedom  of  the  press. 


506  CIVIL  LIBERTY:     RELIGIOUS  AND  POLITICAL.         §  472 

§  472.     Freedom  of  speech  and  press  and  the  law  of  libel.^^  — 

That  freedom  of  speech  and  press  does  not  mean  freedom 
from  responsibility  for  the  abuse  of  that  freedom,  appears 
not  only  from  the  history  of  the  right,  but  from  express 
constitutional  provisions  to  that  effect.  Above  all,  the  con- 
stitutions do  not  legalise  libel  and  slander  of  other  persons, 
against  -which  the  remedies  provided  for  by  the  common  law- 
may  be  applied.  So,  also,  there  is  no  doubt  that  speech  and 
press  may  not  be  used  to  corru])t  public  morals,  and  obscene  or 
profane  utterances  by  word  of  mouth,  in  writing  or  in  print 
may  be  made  punishable  offenses.  In  Missouri  and  Kansas, 
statutes  have  been  upheld  punishing  the  sale  of  newspapers 
largely  devoted  to  the  publication  of  scandal,  lechery  and 
immoral  conduct.' 

From  the  point  of  view  of  political  liberty  it  therefore 
becomes  an  important  question,  whether  libels  upon  the  gov- 
ernment are  or  can  be  made  punishable.  The  older  common 
law  is  very  clear.  Blackstone-  says,  libels  are  malicious 
defamations  against  any  person,  and  especially  against  a 
magistrate.  And  Coke  says:  "If  it  be  against  a  magistrate 
or  other  public  person  it  is  a  greater  offense,  for  it  concerns 
not  only  the  breach  of  the  peace  but  also  the  scandal  of  the 
government."-^  Libel  of  the  government  is  at  common  law 
designated  as  seditious  libel,  and  a  similar  offense  may  be 
committed  verball}^  bj''  seditious  words.  Seditious  intent 
may  be  deiined  as  the  intent  to  vilify  or  degrade  the  govern- 
ment in  the  esteem  ol"  the  citizens,  or  to  create  discontent 
or  disaffection,  or  to  bring  the  government  or  constitution 
into  hatred  or  contempt,  or  to  incite  tlie  people  to  tunndt, 
violence  oi-  disorder.'  It  is  indilTerent  at  common  law 
whethci-  till'  seditious  ntter.iiice  is  true  or  falsi",  since  the 
essence  oT  tlie  offense  is  the  provocation  to  a  breach  of 
the  peace;  but  in  America  the  constitutions  commonly  pro- 
vifh;  that  tin'  tnitli  ni.iy  he  given  in  evidence.  With  the 
exception     of    one     state— Indiana     the     trnth     is,     however, 

!K>Seo    Stephen,    History    of    tlio      Stutc  v.  McKce,  T.'i  Conn.   IS,  49  L. 
f'rimiiiJil      Tiinv      of      EiiKjaiid,      eh.      R.   A.  M2. 
XXIV.  ^Book  JV,  p.   150. 

t  State  V.  Van   Wye,  136  Mo.  227;  •' T)   Rep.    125. 

Re    BarikH.   50    F<anH.   242;    see,   also,  'Act    of     Congress     of     July    14, 

1798, 


§473 


FREEDOM  OF  PRESS  AND  LIBEL. 


507 


not  an  absolute  justification,  especially  not  when  the  utter- 
ance is  malicious.  So  the  constitution  of  Illinois-"'  pro- 
vides: "In  all  trials  for  libel,  both  civil  and  criminal,  the 
truth  when  published  with  good  motives  and  for  justifiable 
ends  will  be  a  sufficient  defence."  The  constitutions  there- 
fore do  not  seem  to  prevent  directly  the  punishment  of 
malicious  attacks  upon  the  government  tending  to  degrade 
it  or  to  create  dissatisfaction.^ 

^  473.  Fox's  Libel  Act.— At  the  very  time  of  the  American 
revolution,  government  prosecutions  for  libel  in  England  gave 
rise  to  memorable  constitutional  struggles,  which  turned,  how- 
ever, entirely  ui)on  the  respective  provinces  of  court  and  jury 
in  determining  the  libelous  character  of  a  publication,  the 
criminality  of  libels  not  being  questioned.  The  coiirts  had 
uniformly  ruled  that  the  jury  had  to  pass  on  the  fact  of 
publication,  and  that  it  was  for  the  court  to  determine  whether 
the  character  of  the  publication  was  libelous,  while  it  was 
vigorously  contended  by  those  opposed  to  the  government  that 
the  question  of  intent,  and  thereby  the  whole  question  of 
criminality  of  the  libel,  should  be  left  to  the  jury.  The  latter 
contention  finally  prevailed  in  the  passage  of  Fox's  Libel  Act 


5  Art.  II,  §  4. 

0  On  the  defence  of  truth  the  fol- 
lowing note  to  the  report  of  the 
case  People  v.  Ci'oswell,  3  Johns. 
Cas.  N.  Y.  337,  1804,  is  instructive: 

' '  On  the  last  day  of  the  session  of 
the  Legislature  in  April,  1804,  a 
bill  entitled  'An  Act  relative  to  li- 
bels' was  delivered  to  the  council 
of  revision,  and  at  the  next  session 
of  the  legislature  was  sent  back 
with  the  objections  of  the  council. 
The  principal  objection  is  under- 
stood to  have  been,  because  the  sec- 
ond section  of  the  bill  which  allowed 
the  truth  to  be  given  in  evidence  as 
a  defence  to  an  indictment  for  a 
libel  upon  any  person  holding  an 
office  of  honor  profit  of  trust,  or 
being  a  candidate  for  any  such  of- 
fice, made  no  discrimination  in  re- 
spect to  the  nature,  tendency,  or  in- 
tent  of  the  libel,    and   would   there- 


fore authorise  not  only  charges 
which  were  fit  and  proper  for  pub- 
lic information,  but  every  delinea- 
tion of  private  vices,  defects  or  mis- 
fortunes, however  indecent  or  of- 
fensive, and  made  no  distinction  be- 
tween libels  circulated  from  good 
motives  and  for  justifiable  ends, 
and  sucli  as  were  circulated  for  se- 
ditious and  wicked  purposes  or  to 
gratify  individual  malice  or  re- 
venge. On  February  12,  1805,  the 
House  of  Assembly  took  into  con- 
sideration the  objections  of  the 
Council  of  Revision  to  the  bill  con- 
cerning libels,  and,  the  question  be- 
ing put,  it  was  lost  by  a  large  ma- 
jority. 

A  new  act  of  April  6,  1805,  al- 
lowed the  truth  to  be  given  in  evi- 
dence, if  published  from  good  mo- 
tives and  for  justifiable  ends. 


508  CIVIL  LIBERTY:     RELIGIOUS  AND  POLITICAL.         §474 

in  1792,  which  provided  that  in  trials  for  libel  the  jury  should 
give  a  general  verdict  of  guilty  or  not  guilty  upon  the  whole 
matter  put  in  issue,  and  should  not  be  required  to  find  the 
defendant  guilty  merely  on  the  proof  of  the  publication  by 
the  defendant  of  the  paper  charged  to  be  a  libel,  and  of  the 
sense  ascribed  to  the  same  in  the  indictment  or  information.' 

The  principle  thus  affirmed  by  Parliament  in  England  had, 
as  early  as  1790,  been  embodied  in  the  Constitution  of  Pennsyl- 
vania, in  a  clause  providing  that  "in  all  indictments  for  libels 
the  jury  shall  have  a  right  to  determine  the  law  and  the 
facts,  under  the  direction  of  the  court,  as  in  other  eases." 
The  same  principle  has  found  its  way  into  many,  if  not  most, 
of  the  American  constitutions. 

§  474.  Prosecutions  for  seditious  libel  in  America.  — It  thus 
appears  that  freedom  of  political  discussion  and  criticism  was 
sought  to  be  secured,  not  by  altering  the  substantive  law  of 
libel,  but  by  providing  for  a  popular  control  of  its  administra- 
tion. That  the  principle  of  freedom  of  the  press  was  not 
believed  to  be  contrary  to  the  punishment  of  seditious  libel, 
was  shown  by  the  enactment  by  Congress,  in  1798,  of  a  sedi- 
tion act  punishing  false,  scandalous  and  malicious  writings 
against  the  government  of  the  United  States  with  intent  to 
defame  it,  to  bring  it  into  contempt  and  disrepute,  to  excite 
the  hatred  of  the  people,  stir  up  sedition,  or  to  create  unlawful 
combinations.  The  accused  was  allowed  by  the  provisions 
of  the  act  to  give  evidence  in  his  defence  of  the  truth  of  the 
matter,  and  the  jury  were  to  determine  law  and  fact.  Several 
convictions  were  obtained  under  the  act,  but  it  was  allowed 
to  expire  in  1801.'^  Tii  1805,  in  Peinisylvania,  a  prosecution 
for  libel  was  institutetl  against  a  person  wlio  hatl  published: 
"Democracy  is  scarcely  toler.-ible  ;it  any  period.  It  is  impos- 
siblt^  not  to  discover  llie  liililily  of  this  Government.  *  *  # 
It  is  oil  lis  ti-i;il  liere,  and  its  issue  will  be  civil  war.  desola- 
tion.  and  anareliy."  The  iiidici  nieiil  eliarged  llie  accused 
with  briiij^inir  into  contempt  ami  hati-cd  tlic  independence  of 
the  I'nited  States,  the  const  itnt  ion  ol"  the  comnionwcdth  and 
(>{'  the  I'nited  Stntes,  with  intent  to  excite  i)opular  disconlcid, 
and  dissat  isTaclion  a^'ainsl  th<'  scheme  of  policy  instituted  and 
on  ti-ial  in  the  rnite(|  States     •      *      »      _  to  subv<'i-t.  ri'i)ul)licau 

'  Hi-v  Spjirf   V.   United   SUitfs,    l.'iO  *<  Sc-   \Vli;iit..M,   St;itr  Trials. 

I',  s.  r,i.  |.i.    i"i  1 II. 


^  475  SEDlTIOUb  LIBEL.  509 

institutions  and  free  governments,  to  involve  the  United  States 
and  the  Commonwealth  in  civil  war,  desolation,  and  anarchy, 
to  procure  by  art  and  force  a  radical  change  in  the  principles 
and  form  of  government  without  the  free  will,  wish  and  con- 
currence of  the  people.  The  court  charged  the  jury,  that  it 
was  no  infraction  of  the  law  to  publish  temperate  investiga- 
tions of  the  nature  and  forms  of  government,  and  that  they 
must  decide  whether  the  defendant  as  a  factious  and  seditious 
person  with  the  criminal  intentions  imputed  to  him  in  order 
to  accomplish  the  objects  stated  in  the  indictment,  did  make 
and  publish  the  writing  in  question.  The  jury  rendered  a 
verdict  of  not  guilty.^  This  was  probably  the  last  prosecution 
for  seditious  libel  instituted  in  this  country,  and  the  offense 
may  be  said  to  be  practically  obsolete. 

Custom  and  public  sentiment  have  come  to  sanction  the 
widest  latitude  of  criticism  of  the  government,  although  in 
most  cases  it  must  be  impossible  to  make  out,  by  legal  proof, 
the  truth  of  general  charges  against  a  statesman  or  official 
or  his  administration.  Where  the  criminal  law  is  codified, 
the  definition  of  libel  often  fails  to  cover  sedition  and  com- 
prehends only  the  defamation  of  individuals.^*^  The  most 
ample  freedom  of  discussion  of  public  affairs  is  now  gen- 
erally understood  to  be  guaranteed  by  the  freedom  of  speech 
and  of  the  press,  and  the  long  continued  practice  of  tolera- 
tion may  be  accepted  as  sufficient  warrant  for  modifying  the 
interpretation  of  the  express  constitutional  guaranty  to  that 
effect. 

§  475.    Attacks  upon  government  in  general — Anarchism. — 

A  proposition  to  forbid  and  punish  the  teaching  or  the 
propagation  of  the  doctrine  of  anarchism,  i.  e.,  the  doctrine 
or  belief  that  all  established  government  is  Avrongful  and 
pernicious  and  should  >  be  destroj^ed,  is  inconsistent  with  the 
freedom  of  speech  and  press,  unless  carefully  confined  to  cases 
of  solicitation  of  crime,  which  will  bo  discussed  presently. 
As  the  freedom  of  religion  would  have  no  meaning  without 
the  liberty  of  attacking  all  religion,  so  the  freedom  of  political 
discussion  is  merely  a  phrase  if  it  must  stop  short  of  question- 
ing the   fundamental   ideas  of  politics,   law  and    government. 


<>  Kespublica  V.  Dennie,  4  Yeates,  lo  Illinois    Criminal    Code,    §    177, 

57,  1805.  New  York  Penal  Code,   §   242. 


510  CIVIL  LIBERTY:     RELIGIOUS  AND  POLITICAL.         §476 

Otherwise  eveiy  government  is  justified  in  drawino-  the  line 
of  free  discussion  at  those  principles  or  institutions,  which  it 
deems  essential  to  its  perpetuation, — a  view  to  which  the 
Russian  government  would  subscribe."  It  is  of  the  essence 
of  political  liberty  that  it  may  create  disaffection  oi-  other 
inconvenience  to  the  existing  government.  otluM-wisc  thci-c 
would  be  no  merit  in  tolerating  it.  This  toleration,  howevei-. 
like  all  toleration,  is  based  not  upon, generosity,  but  on  sound 
policy:  on  the  consideration,  namely,  that  ideas  are  not  sup- 
pressed by  suppressing  their  free  and  public  discussion,  and 
that  such  discussion  alone  can  render  them  harndess  and 
remove  the  excuse  for  illegality  by  giving  hope  of  their  realisa- 
tion by  lawful  means. 

§  476.  Incitement  to  crime  and  violence. — Freedom  of 
speech  linds.  however,  its  limit  in  incitement  to  crime  and 
violence.  By  the  principles  of  the  connnon  law,  the  procure- 
ment of  crime  is  in  itself  a  criminal  act,^-  antl  a  conspiracy  to 
commit  a  crime  is  criminal  though  the  end  is  never  accom- 
plished or  even  undertaken.' ■'•  'Plic  prohibition  of  acts  pun- 
ishable at  coiiimon  I;)av  is  of  course  within  the  constitutional 
power  of  the  state  governments.  Therefore  a  statute  may 
validly  forbid  all  speaking  and  writing  the  object  of  which 
is  to  incite  directly  to  the  commission  of  violence  and  cimuhv 
Such  was  found  to  be  the  character  of  the  utterances  of  the 
anarchist  leaders   in   Chicago.   Avho   were  convicted   in    1SS7.'^ 

In  the  anarchistic   ])ropagan(la    it    is   not  easy  to   ihaw   the 

11  Liu'l     Unit    expresscil    tlic    \>r\\\-  I'arc,   also,    '_'<!    Inst,    ~i'^:      "Against 

cipie    <j1'    iiitiileranco    wlicii    Ik'    saiil:  those    that    attempt   to   subvert,   and 

"If   people   should   not   be  called   to  enervate     the     Kinjj's    Laws,     there 

account    for    possessing;    the    people  lieth  ;i   writ    to  the  sheriff  in   nature 

with    an    ill    (i|iiiii t'    llic    yoxcrii-  of  a  i-oniniission    *    *    *    ;iiid   this  is 

men!     no     government     ean     subsist,  lex  Icirdc,  by  jirocess  of  law,  to  take 

{•'or  it   is  very  necessary  for  all  gov-  a    man   without  answer,   or  summons 

ernments     that     the     peo])le     shotdd  in     this    case;     an<l     the    r(>ason     is, 

have    a    good    opinion     of    it.       And  niriild    iHiu/ifiiiiii    /(V/i.s'   amittil,   qui 

notliing   can    be   worse   to   any    gov-  Iciicm  ii)sam  suhtwrlere  intcndU." 

ernnient    tlian    to    endeavor    to    i)ro-  i- Bishop 's   New   Criminal   T.aw    I, 

diu'e   animosities   as  to    Ihf   manage-  „  ..j., 

ment     mI"    it;     this    has    ;ilways    been 

,     ,     ,  .  ,"  I'  ibid,    I,   §    i:',-_'. 

looked   npiin  as  a  crime,  ano   no  gov- 
ernment   <-an    be    safe    without     it    is  "Spies    v.     I'r..|dc,     li'i:     111.     1,    W 
punished."      Kcx    v.    Tnt.liin.    II. dt.      Am.   St.    Kep.   .120. 
p.    4L'4,    Bislh.p    I.    Sec.    4.')(i.      Com- 


§  477  ANARCHISM.  511 

line  between  discussion  or  agitation  that  nnist  or  should  he 
tolerated  and  methods  that  are  or  may  be  made  criminal.  It 
is  generally  conceded  that  the  state  may  forbid  incitement 
to  crime,  and  incitement  not  addressed  to  a  specific  person  n<»r 
aimed  against  a  specific  person  may  be  brought  Avithin  tlic 
prohibition  of  the  law:  and  the  law  may  go  so  far  as  to 
treat  the  glorification  of  crimes  that  have  been  committed  as 
contrary  to  public  order  and  decency ;  but  the  doctrine  that 
crime  may  under  given  conditions  become  justifiable  or  thai 
it  may  have  a  tendency  to  arouse  the  public  conscience  should 
not  in  itself  be  held  to  constitute  a  crime.  It  is  clear  that 
an  exposition  of  social  wrong  or  injustice  must  be  allowed, 
nor  can  the  necessary  liberty  of  agitation  be  said  to  be  over- 
stepped by  appeals  to  sentiment  rather  than  to  reason;  and  if 
it  is  said  that  appeal  to  sentiment  is  appeal  to  passion  and 
may  lead  to  disorder  and  violence,  it  must  be  answered  that 
this  was  always  the  plea  upon  which  political  agitation  was 
formerly  suf^pressed.  Not  even  the  fact  that  an  adherent 
of  the  doctrine  commits  a  crime  is  conclusive  that  the  teaching 
of  the  doctrine  amounts  to  incitement  ;^^  for  the  crime  may  as 
well  have  been  induced  by  a  morbid  brooding  over  conditions 
which  are  the  cause  of  social  discontent,  and  some  of  the  most 
notable  of  recent  anarchist  crimes  must  probably  be  accounted 
for  on  the  latter  theory. 

§477.  Anarchists'  cases. — While  thus  far  the  anarchist 
propaganda  has  not  yet  been  judicially  examined  with  refer- 
ence to  constitutional  liberty  of  speech,  yet  the  range  of 
necessary  toleration  above  set  forth  has  uniformly  been 
respected  in  adjudication  as  well  as  (until  the  statutes  of 
1902  below  set  forth)  legislation.  In  the  Chicago  anarchists' 
case,!*'  lY^^Q  Sx^preme  Court  of  Illinois  naturally  required  proof 
of  actual  incitement,  for  that  was  a  case  of  prosecution  for 
conspiracy  to  murder;  the  legislation  which  followed  under- 
took to  punish  speeches  or  publications  advising,  encouraging 
or  inciting  the  destruction  of  lawful  power  or  authority,^' 
but  the  act  was  repealed  in  1891  witho^^t  having  received 
authoritative   interpretation,   and   it  is  therefore   left  to   con- 

!!■'  Stephen  Hist.  Criminal  Law  II,  leiitly    and    recklessly    matter    likely 

360.     "It  is  one  thing  to  write  with  to  produce  disturbances." 

a  distinct  intention  to  produce  dis-  kj  Spies  v.  People,  122  111.  I,  1887. 

turbances,  and  another  to  write  vio-  i'  Act  June  16,   1887. 


512  CIVIL  LIBEETY:     RELIGIOUS  AND  POLITICAL.         §478 

jeetiire  what  kind  of  agitation  would  have  been  held  to  be 
covered  by  the  act.  In  England  a  general  commendation 
of  the  assassination  of  sovereigns,  published  in  an  anarchist 
paper  after  the  murder  of  Alexander  II.  of  Russia,  was  held 
punishable  under  statute,^ ^  and  a  eulogy  in  the  same  paper 
upon  the  murder  of  Cavendish  and  Burke  in  1882  was  treated 
as  a  libel.  An  incendiary  speech  l)y  Most  led  to  his  convic- 
tion on  a  charge  of  unlawful  assembly  in  New  York;^*^  he  had 
said,  "See  that  you  are  ready  to  resist  and  kill  those  hirelings 
of  capitalists,"  and  had  uttered  other  threats  which  while 
not  contemplating  immediate  action  were  held  to  tend  toward 
a  breach  of  the  peace.  Yet  the  address  considered  as  an 
individual  act  appears  to  have  been  deemed  insufficient  to 
support  a  criminal  prosecution;  hence  the  charge  of  unlawful 
assembly  which  required  proof  of  the  act  of  three  or  more ; 
and  the  acclamation  and  applause  of  the  audience  (who  were 
shown  to  be  anarchists)  was  held  to  make  out  a  case  of  par- 
ticipation in  the  threats. 

j\Iost  was  again  prosecuted  for  an  article  in  which  he 
denounced  government  as  "murder  dominion,"  advocated  the 
murder  of  the  "murderers,"  and  declared  that  to  spare  them 
was  a  crime.  The  publication  of  the  article  was  held  to  be 
a  violation  of  Section  675  of  the  Penal  Code,  which  makes  it 
a  misdemeanor  to  wilfully  and  wrongfully  commit  any  act 
which  seriously  disturbs  or  endangers  the  public  peace,  for 
which  no  other  punishment  is  expressly  prescribed. 2" 

^  478.  Legislation. — A  statute  was  enacted  by  Congress  in 
1903  which  provides  that  persons  wlio  disbclicxc  in  or  wlio 
are  opposed  to  all  organised  government,  slmll  In'  forbidden  to 
enter  the  connlrx'  <ir  to  become  nnturalised.  Such  ;i  i)i-oliil)i- 
tion  is  not  subject  to  constitutional  limitations.  No  attempt 
is  made  by  the  act  to  restr;iin  tlie  ffeedom  oF  speech  of  nnnr- 
chists  residing  in  the  count ry, 

A  statute  enacted  by  tlie  legishil  ui'e  of  Ihe  sliile  ol'  New 
York  ill  11)02-'  dclines  crimiiuil  ;iunrchy  ;is  tlie  doctrine 
tlnit  orjxJiniscd  governnii'tM  should  he  (i\-ei-lliro\\  n  by  luice  oi* 
violence.   ;ind    punishes   Ihe   ;i<lvoc;ic\'.   ;idvising  cr  teiii-hiiig  of 

isRe^jiiia  v.  MoHt,  7  C^.   II.   I).  LIM,  "  I'coplc  v.    Most.    171    N.   Y.  42.S, 

TitncH  May  2«5.   18S1,   MiHlu.p  <'r.  L.      CI   N.  K.  175,    I'.tOvj. 
1,  9   70.Sn.  ■'  I.:o\v     1<(()'J,    chap.     .'571;     I'cri:il 

1"  I'coplc    V.    MoHt,     \'2H    \.     V.     lOM.        C.ilc    S     HIS    ;i.(>. 


§  479  ANARCHISM.  513 

the  duty,  necessity  or  propriety  of  overthrowing  or  overturnin',' 
organised  government  by  force  or  violence,  the  publication  of 
anarchistic  sentiments,  the  participation  in  assemblages  of 
anarchists,  and  the  permission  of  the  use  of  rooms  for  such 
assemblages.  An  act  of  New  Jersey  of  the  same  year  (chap. 
133)  punishes  the  advocacy  of  the  subversion  and  destruction 
by  force  of  any  and  all  government,  and  the  incitement,  pro- 
motion, or  encouragement  of  hostility  or  opposition  to  any 
and  all  government,  also  the  membership  in  any  organisation 
formed  for  that  purpose,  and  the  introduction  and  circulation 
of  pamphlets  with  the  like  purpose. 

In  accordance  with  the  principles  above  set  forth  the  consti- 
tutional guaranty  of  freedom  of  speech  and  press  and  assembly 
demands  the  right  to  oppose  all  government  and  to  argue  that 
the  overthrow  of  government  cannot  be  accomplished  other- 
wise than  by  force ;  and  the  statutes  referred  to,  in  so  far  as 
they  deny  these  rights,  should  consequently  be  considered  as 
unconstitutional. 

It  is  probably  true  to  say  that  to  the  extent  that  anarchist 
agitation  exceeds  the  bounds  of  free  speech  it  is  punishable 
under  the  principles  of  the  common  law,  and  that  it  is  impos- 
sible to  strike  at  anarchism  as  a  doctrine  without  jeopardising 
valuable  constitutional  rights.22 

§  479.  Freedom  of  culture. — Freedom  in  the  pursuit  of  art, 
literature  and  science  is,  as  a  matter  of  history,  boimd  up 
with  the  freedom  of  religion  and  of  speech  and  press,  for  it 
has  practically  never  been  opposed  for  other  than  religious 
or  political  motives.  To-day  this  freedom  is  established  to 
the  fullest  extent.     The  points  where  it  comes  in  contact  with 

22  The   most    conspicuous    attempt  measures.      The    party    thrived    and 

to    suppress    revolutionary    doctrine  prospered   under    the    law    as    never 

and  agitation  was  made  in  Germany  before.       The     law    was     twice    re- 

with  respect  to  the  Social  Democra-  newed,  but  was  allowed  to  lapse  in 

cy.      This   party   likewise   advocates  1890,    having    demonstrated    its    ab- 

the  doctrine  that  the  existing  capi-  solute   futility. — The   Gorman   Penal 

talistic   society   must   be   overthrown  Code    (Sec.   130)    prohibits  the  pub- 

by   forcible    revolution.      After    the  lie    incitement    of    diflFerent    classes 

two  attempts  upon  the  life  of  Em-  of  the  population  to  violence  against 

peror    William    in    May    and    June,  each    other,    and,    both    the   German 

1878,  a  law  was  enacted  absolutely  and    the   French   law    forbid    public 

prohibiting   the   propagation    of   so-  ministers  of  religion   to  discuss  po- 

cial-democratic   teachings   and   sane-  litical  matters  in  a  manner  danger- 

tioning    the    severest    administrative  ous  to  the  peace  of  the  state. 


514  CIVIL  LIBERTY:     RELIGIOUS  AND  POLITICAL.         §  480 

the  police  power  have  been  touched  iipou  before,  and  a  l)rief 
recapitulation  will  suffice. 

The  freedom  of  medical  science  requires  that  under  the  san- 
itary power  no  exclusive  standards  of  medical  treatment  be 
established,  as  long  as  there  is  respectable  scientific  dissent 
from  the  correctness  of  the  theories  which  the  state  might 
seek  to  establish.^^  In  the  matter  of  vivisection  the  state  should 
be  conceded  full  power  of  control,  but  this  power  should  be 
exercised  with  proper  regard  for  investigations  for  the  advance 
of  science.-^  Bona  fide  scientific  or  scholarly  treatment  of 
offensive  subjects  should  never  fall  under  the  ban  of  the  crim- 
inally obscene;  but  the  state  must  have  power  (to  be  exercised 
very  sparingly)  to  control  the  license  of  art  and  literature  in 
the  matter  of  indecency  and  immoralit.y.--'*  The  state  has 
power  to  control  the  education  of  minors,  and  in  doing  so  may 
further  the  interests  of  nationality,  but  where  minors  are  not 
concerned,  the  pursuit  of  truth  and  learning  must  be  absolutely 
free.  These  principles  are  so  fully  recognised  by  the  practice 
of  legislation  that  they  stand  unquestioned,  even  if  lacking 
express  judicial  confirmation. 

FREEDOM  OF  ASSEMBLY  AND   ASSOCIATION.     §§  480-484. 

5;  480.  The  right  of  assembly. — The  constitutions  secure  the 
right  of  the  people  to  assemble  to  consult  for  the  common 
good,  often  in  conjunction  with  the  right  to  petition  the 
government  for  a  redress  of  grievances.  Many  constitutions 
speak  expressly  of  peaceably  assembling,  and  the  common  law 
and  statutory  prohibitions  of  riots  and  unlawful  assemblies 
disturbing  public  order  or  for  the  purpose  of  committing 
iiiihiwfnl  acts,  and  tlir  jiowers  of  officers  of  the  peace  to  break 
them  up  hy  iiiiiiH'dijite  executive  aclion  without  judicial 
process,  nrc  nol  jirt'i-ctcd  hy  jlic  giinranty.-'"'  What  the  con- 
stitutions i'oi-hi(l  is  thi-  I'cstrainl  oi-  punishment  of  the  mere 
act  of  meeting  lor  llic  |>nr|)osc  of  <Iih;i1e.  discussion  oi-  eo- 
operat  i<»n  :-"  hut   \\\r  jids  jiud  ohjecls  of  llie  persons  nsseuilth'd 

2-T  §    15'J.  Ill"    iiKirc    lliiiii     ten    ]n>rs(His    ;i(     oiio 

2«  §  L;4!I.  time  lo  tlio  King  or  to  oither  of  the 

-'•  5  '2'.\H,  'SM.  FlonscH  of  I'arlianKMit  iii)oi)  prctoiico 

2"  Bishop    Now    (  riiniiial  Proceed-      of    j)rnHentinjT    any    petition    or    ad- 

iin-  1.  8  IS.3.  dross.     Tlie  sanio  net  required  every 

27  Ho  an   Knglisli  slaliitc  (]2  Car.      petition  HJ^fiicd  liy  in<ir('  tli;in  tAvcnty 

IF,  ('a)),  r"))    prohiliiti'd   tlu'  rc|iairing      persons    to     l)o    ai)provetl     by     tliree 


§  480  RIGHT    OF    A8SEMBLV.  5I5 

may,  if  unlawful,  impress  at  any  tinu'  upon  I  lie  meeting  itself 
an  unlawful  character.**  Tlie  right  to  meet  peaceably  for 
consultation  in  respect  to  public  affairs  has  been  declared  by 
the  Supreme  Court  of  the  United  States  to  be  implied  in  the 
very  idea  of  a  government  republican  in  form. 2-' 

The  constitutional  right  of  assembly,  however,  does  not 
include  the  right  to  use  for  that  purpose  the  streets  and  other 
places  owned  and  controlled  by  state  or  numicipality,  but 
presupposes  that  those  who  assemble  have  a  right  to  control 
the  place  where  they  meet.  If  this  were  not  so,  the  right  of 
assembly  would  constitute  a  serious  disturbance  of  the  rights 
of  others.  Streets  and  public  places  are  devoted  to  the  use 
of  the  whole  public  for  purpose  of  traffic,  intercourse,  and 
exercise,  and  the  use  must  be  enjoyed  so  that  the  rights  of  all 
are  observed.  An  assembly,  however,  always  interferes  with 
the  general  public  use,  and  a  number  of  meetings  at  the  same 
time  may  cause  disorder  and  conflict.  Under  proper  regulations 
this  effect  may  perhaps  be  avoided,  but  plainly  the  use  for 
this  purpose  cannot  be  claimed  as  a  matter  of  common  right. 
It  must  be  subject  to  a  police  power  of  regulation,  and  may 
be  restrained  as  to  time  and  place,  and  number  and  duration 
of  meetings.  Since  this  power  of  regulation  is  commonly 
delegated  to  municipalities,  the  courts  control  it  as  to  its 
reasonable  exercise,  and  an  absolute  prohibition  of  meetings 
in  public  places  would,  as  has  been  intimated,  be  held  to  be 
unreasonable.^"  On  the  other  hand,  the  absolute  authority  of 
the  legislature  to  control  the  use  of  public  places  has  been 
upheld  by  the  Supreme  Court  of  Massachusetts,  and  confirmed 
by  the  United  States  Supreme  Court,^!  on  the  ground  that  the 
power  over  public  places  is  of  a  proprietary  character. 

The  question  of  the  right  to  use  public  places  has  been 
chiefly  discussed  in  connection  with  parades  and  processions, 
Avhich  may  be  regarded  as  a  form  of  assembly.  IMunicipal 
regulations    were    attacked    in    the    courts    which    restrained 

justices  of  the  peace  or  by  the  ma-  so  Anderson      v.      Wellington,      40 

jority    of    the    grand    jury.      Provi-  Kans.  173,  2  L.  R.  A.  110;  Chicago 

sions   of   this    nature   would    violate  v.  Trotter,  136  111.  430.     See  §  174, 

the    American    constitutional    guar-  supra. 
anties.  31  Com.      v.      Davis,      162      Mass. 

28  People  V.  Most,  128  N.  Y.  108.  510;  Davis  v.  Massachusetts,  167  U. 

29  United  States  v.  Cruikshank,  92  S.  43. 
U.  S.  542. 


516  CIVIL  LIBERTY:     RELIGIOUS  AND  POLITICAL.        §  481 

parades  and  processions  attended  with  music,  by  requiring 
special  permits  and  licenses.  In  several  cases  these  regula- 
tions were  aimed  particularly  at  the  Salvation  Army,  and 
exceptions  were  made  in  favor  of  specified  kinds  of  parades. 
Such  a  regulation  was  upheld  in  Massachusetts,'^*-  hut  declared 
unreasonable  and  void  in  other  states.^^  The  adverse  deci- 
sions can,  however,  be  used  only  as  authority  for  the  principle 
that  municipal  regulations  must  not  be  oppressive  or  partial, 
and  that  arbitrary  discretion  to  discriminate  must  not  be 
vested  in  executive  officers.  The  question  whether  the  legisla- 
ture itself  may  violate  the  principle  of  equality  in  the  regula- 
tion of  the  right  to  parade,  has  not  been  distinctly  raised  or 
discussed;  it  would,  in  any  event,  present  a  different  issue 
from  the  right  of  assembly. 

The  right  of  public  assembly  is  probably  not  inconsistent 
with  reasonable  regulations,  even  where  public  grounds  are 
not  used.  The  French  law  of  June  30,  1881,  proclaiming  the 
liberty  of  public  assembly,  nevertheless  requires  for  the  hold- 
ing of  a  public  meeting  preliminary  notice  to  the  police  which 
has  the  right  to  detail  an  officer  to  attend  the  meeting;  it 
requires  that  the  meeting  be  organised  with  a  responsible 
committee,  and  it  forbids  the  holding  of  meetings  later  than 
eleven  o'clock  at  night.  Provisions  of  this  character  can 
hardly  be  regarded  as  substantial  impairments  of  the  constitu- 
tional right. 

^  481.  History  of  the  right  of  association. — Tt  is  somewhat 
remarkable  that  while  our  constitutions  through  their  bills  of 
rights  protect  the  right  of  assembly,  they  should  be  silent 
as  to  the  right  of  association,  whereas  on  the  continent  of 
Europe,  in  the  struggle  for  political  liberty,  equal  stress  has 
been  and  is  laid  upon  both.  The  difference  between  assembly 
and  association  is  obvious:  assciiihly  is  the  physical  act  of  Ihc 
meeting  of  many  in  one  i)l:ic(\  with  or  without  organisalion  ; 
association  presupposes  organisation,  ;iih1  implies  a  rrlalion 
of  some  piTiiKiiiciicf  hclwccii  .'I  niiiiiln  T  <)l'  persons.  The  right: 
of  asst'inhly  docs  not  necessarily  include  th.it  ol"  association, 
or  vic(^  versa.  iiltliouLih  both  are  nnitiiMlly  supplcnicntai-y,  and 
each  a  vahnihle  ;ii<l  to  tin-  other.  l*'or  the  inainlenance  of 
poli1ie;il   liberty,  the  right   of  ;issoei;it ion  is  I'ully  as  important 

32  Com.     V.     I'liiisted,     \\H     MasH.  «■■»  See  §  (54.3,  644,  729. 

375,  2  T-.  K.  A.  M2. 


§  481  RIGHT  OF  ASSOCIATION.  517 

as  the  right  of  assembly,  and  it  is  therefore  of  interest  to 
inquire  how  far  it  is,  in  America,  a  constitutional  right. 

We  should  eliminate  from  this  inquiry  associations  with  an 
economic  or  commercial  object.  So  far  as  these  are  in 
restraint  of  trade,  they  have  been  treated  of  before.  Joint 
stock  companies  have  always  been  entirely  free  in  America, 
while  in  England  they  were  at  one  time  restrained  by  the 
so-called  Bubble  Act,^^  which  was,  however,  not  applied  to 
co-operative  associations  the  shares  of  which  were  not  freely 
transferable,^''''  and  at  present  are  entirely  regulated  by  stat- 
ute. 

Associations  in  general  were  not  until  the  end  of  the  eight- 
eenth century  made  the  subject  of  restrictive  statutory  legis- 
lation in  England.  It  is  said  that  under  the  early  common  law  it 
was  a  punishable  offense  to  maintain  an  organised  association, 
a  communa  or  a  gild,  without  the  king's  license,  and  the  royal 
exchequer  was  enriched  by  fines  levied  periodically  upon 
"gildae  adult erinae;"^^  but  this  prohibition  appears  not  to 
have  been  enforced  in  later  times. •^'  Unlawful  associations 
Avere  covered  by  the  law  of  conspiracy  and  treated  as  crimes; 
any  object  injurious  to  the  public  was  held  sufficient  to  stamp 
the  association  pursuing  it  as  a  conspiracy ;  but  the  chief 
forms  of  conspiracy  were  those  to  indict  another  falsely,  and 
those  in  restraint  of  trade.  The  latter  have  already  been 
treated  of.  Hudson,  in  his  treatise  on  the  Star  Chamber,^** 
speaks  only  of  conspiracies  to  falsely  indict,  i.  e.,  for  malicious 
prosecution,  and  it  is  in  the  Star  Chamber,  if  anywhere,  that 
we  should  expect  to  find  repressive  proceedings  against  unlaw- 
ful associations  of  a  social  or  political  character.  Stephen, 
in  his  History  of  the  Criminal  Law,  in  speaking  of  seditious 
conspiracy,  says^'^ :  "It  would  be  difficult  to  say  precisely 
at  what  period  the  use  of  completely  organised  voluntary 
associations  for  the  purpose  of  obtaining  political  objects 
first  became  a  marked  feature  of  English  political  life,  but 

34  6  Geo.  I,  ch.   18.  nances   of   gilds   to   be  approved   by 

35Kex    V.    Webb,    14    East.    406;  justices  of  the  peace;   but  these  or- 

Pratt   V.   Hutchinson,   15   East.   511.  dinances    were   virtually    regulations 

36  See  Maddox  Firma  Burgi,  pas-  of  trade  binding  in  the  locality. 

sim.  38  Collectanea     Juridica     II,     104- 

3T  Parliament,    by    acts   passed   in  107. 

1437    (15  H.  VI,  cap.  6)   and  1503  39  II,  377. 
(19  H.  VII,  cap.   7)    required   ordi- 


518  CIVIL  LIBERTY:     RELIGIOUS  AND  POLITICAL.        §  481 

it  is  certain  that  it  received  a  great  accession  of  importance, 
to  say  the  least,  when  associations  began  to  be  formed  for 
the  purpose  of  procuring  changes  in  the  constitution  of 
Parliament  and  the  other  institutions  of  the  country  by 
constitutional  means.  In  earlier  times  the  great  questions 
which  agitated  the  country  hardly  admitted  of  such  associa- 
tions. A  voluntary  association  of  the  religious  kind  under 
the  Tudors  or  Stuarts  would  have  rendered  its  members 
liable  to  severe  penalties  under  the  Act  of  Uniformity.  An 
association  for  the  purpose  of  dethroning  James  II.  or  for 
reinstating  James  III.  would  have  been  high  treason.  It  was 
not  until  the  public  at  large,  or  considerable  sections  of  it, 
began  to  agitate  for  changes  in  the  constitution  to  be  etlected 
by  Act  of  Parliament,  that  the  formation  of  societies  openly 
and  avowedly  intended  for  that  purpose,  became  possible." 

A  political  association  agitating  against  the  government 
could  at  any  time  have  been  dealt  with  as  a  conspiracy  to  stir 
up  sedition.  However,  in  1799,  an  act  was  passed,"*"  revived 
and  made  perpetual  in  1817,^ '  which  made  illegal  all  associa- 
tions requiring  of  their  members  an  oath,  among  other  things, 
to  obey  the  commands  of  a  committee  or  other  person  not 
having  authority  by  law  for  that  purpose,^-  or  not  to  inform 
or  give  evidence  against  any  associate;  also  all  associations 
whose  members  subscribe  or  assent  to  any  test  not  i-tMinircd 
l)y  law  or  approved  by  justices  of  the  peace,  or  which  keep 
the  names  of  their  members,  or  of  their  governing  committees 
or  other  officers,  secret;  also  all  associations  composed  of  dif- 
ferent divisions  or  branches  Avith  distinct  organisation,  or  com- 
municating by  delegates  with  other  societies;  making  excep- 
tions in  favor  of  religious  and  chai-itable  societies,  and  of 
Free  Masons.  I*arliament  thus,  it  is  ti-nc  uiidcf  llic  stress  of 
great  i)olitical  cxcitcnicnt.  undertook  lo  rcsli-niii  the  right  of 
])olitical  association,  not  oid\  hy  forbidding  (dubs  whose  consti- 
tution encouraged  or  facilitated  lawlessness  through  the 
re(|uirenient  of  secrecy  and  implicit  obedience,  but  l)y  striking 
;it  ;d!  (Miinl)in;iti<iii  ;ind  co-operation  of  political  s(t('ieties,  — a 
njost  serious   (die(d<    ujton    i>olitif':d    ;iLnt:ition. 

!$  482.    Constitutional  power  in  America.-  In  Amei-ic;)  noth- 

<"  39  ficfi.    Ill,  ••!ip.   70.  Itidilcii    in    (icrriuui.v,     rcnnl    Cudc,    § 

■ti  r,7  (h'h.    Ill,  Clip.   !!•.  v^s. 

<■■!  Hndi   uHHociatioriH   are  uIho    for- 


§  483  POLITICAL   PARTIES.  51!j 

ing  similar  has  ever  been  attempted  by  legislation.  There 
has  been  and  is  the  most  absolute  toleration  of  all  political 
associations.  This,  however,  does  not  necessarily  mean  lack 
of  constitutional  power  of  regulation.  Is  there  any  good  rea- 
son why  the  legislature  should  not  have  power  to  prohibit 
secret  societies  or  societies  whose  members  should  bind  them- 
selves by  oath  to  obey  implicitly  the  orders  of  superiors? 
Such  a  prohibition  would  seem  to  be  within  the  legitimate 
scope  of  the  police  power  for  the  prevention  of  crime  and 
disorder;  for  the  possibility  of  abuse  of  such  organisation 
for  criminal  purposes  is  apparent,  and  it  certainly  impedes 
the  efficient  administration  of  justice.  For  support  of  this 
view  reliance  may  be  placed  upon  the  analogy  of  the  prohibi- 
tion of  unauthorised  military  organisations,  which  has  been 
upheld  as  a  measure  for  the  public  peace,  although  the  right 
to  bear  arms  is  guaranteed  by  the  constitutions.-*  ^  On  the 
other  hand,  the  co-operation  of  different  political  societies  may 
be  quite  essential  for  their  greater  efficiency,  and  is  an  invalu- 
able aid  to  legitimate  political  agitation.  Not  having  any 
plausible  relation  to  disorder  or  disturbance  of  the  peace,  it 
seems  that  such  co-operation  could  not  be  validly  prohibited. 
The  right  of  association  should  then  be  treated  as  subject  to 
regulation  and  restraint  on  the  general  principles  of  the  police 
power  for  the  maintenance  of  peace  and  order,  and  these 
principles  afford  to  all  interests  concerned  the  needed  pro- 
tection. 

§  483.  Political  parties  and  primary  election  laws. — The 
primary  election  laws  enacted  in  recent  years  in  many  states 
undertake  to  regulate  the  action  of  political  parties  in  impor- 
tant particulars,  substituting  in  some  respects  absolutely 
binding  rules  imposed  by  the  legislature  for  the  former  power 
of  autonomous  management.  Thus  presiding  officers  at  pri- 
mary elections  may  be  required  to  take  the  oath  of  election 
inspectors,  or  may  even  be  appointed  by  civil  authorities;  the 
right  to  vote  and  the  disposition  of  challenges  is  provided 
for ;  the  appointment  of  watchers  is  required ;  and  the  whole 
conduct  of  the  primary  election  is  placed  under  a  control 
regulated  by  law.  Moreover,  in  New  York,  the  election  and 
term  of  office  of  the  members  of  the  general  committee  of  the 
party  is  determined  by  law,  so  that  the  attempted  removal 

•43  §  91,  supra. 


520  CIVIL  LIBERTY :    RELIGIOUS  AND  POLITICAL.         §  483 

from  office  by  the  committee  of  one  of  its  members  has  been 
held  to  be  illegal.^^  Upon  what  principle  can  such  incisive 
control  of  party  action  be  reconciled  with  the  principle  of 
freedom  of  political  association? 

A  certain  amount  of  regulation  may  be  justified  on  the 
ground  that  an  individual  member  or  a  minority  is  entitled 
to  protection  against  the  abuse  of  majority  powers.  It  is 
well  established  that  a  member  of  a  club  may  have  a  judicial 
remedy  against  unwarranted  expulsion :  but  in  granting  it 
the  courts  merely  enforce  the  fair  application  of  the  existing 
rules  of  the  association,  and  no  attempts  are  made  to  supersede 
its  autonomy.  The  plea  of  minority  protection  can  certainly 
not  justify  the  compulsory  admission  of  individuals  to  the 
right  to  vote  at  primary  elections. 

It  may  also  be  urged  that  in  primary  elections  the  party 
exercises  a  public  function  essential  to  the  legally  established 
machinery  of  filling  offices,  and  that  upon  that  ground  their 
action  is  under  public  control.-'-'''  Th(^  recognition  by  our  i)ub- 
lic  law  of  the  legal  status  of  llu'  i)aity  as  an  agency  in  the 
making  up  of  our  government  is,  indeed,  a  development  of 
marked  interest .^«  But  it  is  to  be  noticed  that  for  the  pur- 
pose of  controlling  primary  elections  the  whole  party 
machinery  is  virtually  brought  under  state  regulation,  and 
the  (incslioii  must  arise  whether  this  is  consistent  with 
I)olitieal  liberty.  A  strict  enforcement  of  the  princii)le  of 
equality  as  between  different  parties  would  prevent  flagrant 
abuses  of  the  powers  of  the  state-  but  if  the  principle  of 
public  control  is  recognised  without  (lunlilicntioii.  indcix'iul- 
cncc  of  political  agitation   iimy   he  sci-ionsly   impaired. 

It  is,  however,  possibh-  to  explain  tlu'  power  of  control  over 
j.arly  machinery  without  r.-sorting  to  the  police  power  at 
all.  This  control,  as  has  been  said,  is  oidy  exercised  in  con- 
nection with  the  conduct  of  |)riniary  elections;  the  |u-iniary 
election  laws,  again,  are  an  outgrowth  ol'  the  so-called 
Austi-alian  ballot  system.  <.ne  ni"  the  principal  features  of 
whi.'h  is  the  printing  of  I. allots  at  public  expense.  An  ex- 
jiiiiiii.ition    of    Ihr    laws    will    show    that    the    compliance    with 

•••  People   ex    id.    Coffey   v.    Dciiin  <  )nKnn.       I.;i<i(l    v.    Holmes,    (Wi    I'a.'. 

eriitii-  (lenoral  Coiiimitlee,  KM  N.  ^■.  711. 

335    ns  N.  E.  124.  "-Sec  F.  J.  O.ooiliiow,  Politics  iiml 

ir-Tliis   view    in   taken   stroiij^'ly    in  A.lniiiiistratioii,  New  York,   l.S9i». 


§  484  POLITICAL   PARTIES.  521 

l)rimary  election  laws  and  the  submission  to  the  control  estab- 
lished by  them  is  simply  a  condition  precedent  to  having  the 
party  recognised  as  such  on  the  ballot,  and  to  having  the 
names  of  its  members  printed  thereon  at  the  public  expense : 
in  other  words,  it  is  the  price  voluntarily  paid  for  the  enjoy- 
ment of  a  privilege  so  valuable  that  a  party  will  not  easily 
forego  it.  A  political  organisation  not  claiming  similar  privi- 
leges may  avail  itself  of  the  provisions  made  by  law  for  inde- 
pendent nominations,  and  thereby  escape  the  legal  control 
over  its  machinery.  A  party  preferring  to  make  use  of  the 
privileges  conferred  by  the  primary  election  laws,  ceases  to  be 
privati  juris  and  consents  to  become  an  instrument  for  secur- 
ing fair  elections ;  otherwise  the  expense  of  the  primary  elec- 
tion could  not  be  charged  to  the  public.  Ceasing  to  be 
privati  juris,  it  cannot  claim  the  rights  of  private  liberty  or 
the  application  of  the  ordinary  limitations  of  the  police  power. 

§  484.  Conclusions  reached. — The  foregoing  considerations 
lead  to  the  following  conclusions :  the  right  of  association  may 
be  placed  under  restraint  in  the  interest  of  peace,  order  and 
security;  it  may  be  subjected  to  uniform,  impartial  and  reason- 
able regulations  for  the  protection  of  the  members  of  the  asso- 
ciation and  of  the  public  dealing  with  it;  but  an  impairment  of 
the  right  not  called  for  by  the  interests  mentioned  would  be 
unconstitutional  as  inconsistent  with  the  principles  of  liberty 
essential  to  the  existence  of  a  republican  government.  In  other 
words,  the  general  principles  of  the  police  power  are  adequate 
to  protect  this  right,  as  they  are  adequate  to  protect  other 
rights,  and  as  they  would  be  adequate  to  protect  freedom  of 
speech,  press  and  assembly,  without  express  clauses  in  the  con- 
stitutions. Associations  for  social  purposes  (including  literary, 
artistic  and  scientific  societies)  stand  on  the  same  footing  of 
liberty. 

The  principle  may  perhaps  be  formulated  in  this  way:  po- 
litical and  social  discussion  and  agitation,  whether  through 
speech  or  press  or  assembly  or  association,  not  resorting  or 
inciting  to  violence  or  crime  or  the  legal  injury  of  private 
rights,  is  subject  to  the  police  power  only  for  the  purpose  of 
reasonable  regulation  tending  to  subserve  its  legitimate  pur- 
pose, but  not  for  the  purpose  of  substantial  impairment  or 
suppression.'*''' 

47  Social  control.  — May  the  right  ]nirpose  of  influencing  and  controll- 
of  association  be  freely  used  for  the     ing,   through   organised  social  pres- 


522 


CIVIL  LIBERTY:    RELIGIOUS  AND  POLITICAL, 


sure,  standards  of  individual  con- 
duct? Would,  in  other  words,  a 
boycott  for  social  purposes  be  law- 
ful? The  boycotts  with  which  the 
courts  have  had  to  deal  have  had 
for  their  object  the  control  of  busi- 
ness relations,  and  no  boycott  has 
been  declared  illegal  which  scrupu- 
lously avoided  threats  and  intimida- 
tion and  libelous  or  abusive  lan- 
guage. As  a  matter  of  fact,  social 
control  has  not  yet  assumed  the 
form  of  a  boycott.  The  most  in- 
cisive forms  of  organised  social  pro- 
ceeding against  an  individual  are 
expulsion  from  societies  and  excom- 


munication from  the  church;  but 
in  these  cases  the  individual  by  join- 
ing the  organisation  has  voluntarily 
subjected  himself  to  its  jurisdiction. 
On  principle,  a  political  community 
which  assigns  to  state  compulsion 
the  narrowest  possible  limits  invites 
social  self-protection  and  depends 
upon  it.  It  should  therefore  allow 
the  widest  scope  to  voluntary  or- 
ganised and  associated  action,  in- 
sisting at  the  same  time  upon  the 
most  scrupulous  respect  of  individ- 
ual rights  of  person  and  property, 
and  enforcing  the  strictest  liability 
for  violence,  fraud  and  defamation. 


CHAPTER  XXIII. 

CIVIL  LIBERTY:   ECONOMIC. 

FREEDOM   OF   MIGRATION   AND  SETTLEMENT.     §§  485-49L 

§  485.  Considerations  of  public  welfare.— The  character, 
the  density  and  the  distribution  of  the  population  are  of 
supreme  interest  to  the  state  from  the  political  as  well  as 
the  economic  point  of  view.  A  state  may  deem  it  necessary 
or  expedient  to  keep  undesirable  elements  out  of  its  borders, 
or,  if  within  the  territory,  to  segregate  or  confine  them  to 
certain  districts,  or  to  prevent  the  emigration  of  its  people, 
or  to  check  the  movement  from  one  portion  of  the  territory 
to  another,  or  from  country  to  city,  or  to  encourage  it.  The 
exercise  of  state  authority,  however,  in  this  direction  is  open 
to  the  objection  that  artificial  restraints  on  the  movement 
of  population  lead  to  individual  hardship  and  distress,  tax 
and  elude  the  vigilance  of  the  authorities,  run  counter  to 
economic  laws,  and  fail  to  produce  the  desired  result.  Except 
within  well  defined  limits,  the  police  power  therefore  yields 
to  the  principle  of  liberty  of  migration  and  settlement. 

§  486.  Movement  from  and  to  foreign  countries.— In  the 
control  of  immigration  we  should  distinguish  measures  which 
aim  to  protect  the  territory  and  the  people  from  disease  and 
crime,  and  those  which  have  an  economic  or  political  object. 
Measures  of  the  former  character  Avere  enacted  by  the  states 
until  Congress  acted ;  but  since  federal  legislation  now  gives 
adequate  protection  by  excluding  idiots  and  insane,  paupers  or 
persons  likely  to  become  public  charges,  persons  suffering 
from  a  loathsome  or  dangerous  contagious  disease,  persons 
convicted  of  crimes,  and  polygamists,  state  legislation  is  now 
practically  confined  to  quarantine  measures.^  Measures  going 
beyond  the  absolute  need  of  protection  are  regarded  as 
regulations  of  commerce,  and  hence  beyond  the  power  of 
the  state.2     But  immigration   is  within   the   absolute   control 


lAct  of  March  3,  1891,  I  Suppl 
934.  March  3,  1903,  32  Stat,  at  L 
1213;  under  this  act  also  anarchists 

-  Passenger    cases,    7    How.    282 
Henderson  v.   Mayor,  92  U.  S.  2.59 


Chy  Lung  v.  Freeman,  92  U.  S. 
27.5 ;  People  v.  Compagnie  Generale 
Transatlantique,  107  U.  S.  59;  Com- 
pagnie Francaise  v.  State  Board  of 
Health,  186  U.  S.  380. 


523 


524  CIVIL  LIBERTY:   ECONOMIC.  §  487 

of  the  federal  govemmeut  by  virtue  of  the  power  of  terri- 
torial sovereignty,^  and  Congress  has  in  its  measures  gone 
beyond  the  protection  of  safety,  order  and  morals;  it  has 
excluded  laborers  under  contract,^  and  Chinese  laborers,'^  and 
bills  of  more  stringent  character  have  been  repeatedly  con- 
sidered by  Congress,  but  have  hitherto  failed  to  become  laws. 
The  power  to  prohibit  immigration  includes  the  power  of  strict 
supervision  over  all  immigration  to  enforce  existing  pro- 
hibitions.*^ 

§  487.  Emigration  and  expatriation.— By  statute  of  July 
27,  1868,'  Congress  enacted  as  follows:  "Whereas  the  right 
of  expatriation  is  a  natural  and  inherent  right  of  all  people 
indispensable  to  the  enjoyment  of  the  rights  of  life,  liberty 
and  of  pursuit  of  happiness;  and  whereas  in  the  recognition 
of  this  principle  this  government  has  freely  received  emi- 
grants from  all  nations,  and  invested  them  with  the  rights 
of  citizenship;  and  whereas  it  is  claimed  that  such  American 
citizens,  with  their  descendants,  are  subjects  of  foreign 
states,  owing  allegiance  to  the  governments  thereof;  and 
whereas  it  is  necessary  to  the  maintenance  of  public  peace 
that  this  claim  of  foreign  allegiance  should  be  promptly  and 
finally  disavowed:  therefore  any  declaration,  instruction, 
(>l)inion,  order  or  decision  of  any  officer  of  the  United  States 
which  denies,  restricts,  impairs  or  questions  the  right  of 
expatriation,  is  declared  inconsistent  with  the  fundamental 
principles  of  the  Republic." 

This  is  as  strong  a  declaration  of  governmental  principle 
;iii(l  policy  as  it  is  possible  for  llic  legislature  to  make;  at  the 
same  time  if  the  principle  is  not  one  of  constitutional  law, 
succeeding  legislatures  are  not  bound  by  the  declaration.'^  As 
a  matter  of  general  ])ul)lic  bnv.  the  i)()Aver  to  restrain  emigra- 
tion belongs  to  the  territorial  sovereignty  of  every  nation,'* 
;ind  its  exercise  may  l)e  necessary  to  enforce  the  performance 

•■'  Vnnf^  Yiie  Ting  v.  Uniteil  States,  7  Revised  Statutes  §   1999. 

149  U.  S.  G9H.  sFonjT  Yuo  Tin};  v.  United  States, 

*Act    of     February    •_'(},     188.'5,     I  149  U.  S.  G98. 

Hunpi.  479.  '  I'liiHiniuro   International    TjUW   I, 

•'•Art    of    May   f),    1892,    11    Supj)!.  111.      A    Hoyal   proclamation    rerpiir- 

Kl.      As    to    an.-ircliisls,    see    §     I7H,  in>r  tiie  license  of  the  Coniinissioners 

f-itprd.  of     Plantations     for    emigration     to 

'•Sec  Aet   Manli  .'.,   1903,  32  Stat.  America    was    issnc.!    in     l(i37    (XX 

ill  L.  lui:',.  Kymer's  Foedcra  14 .'5).     See  Frank- 


§  487  EMIGRATION.  525 

of  certain  duties,  as,  e.  g.,  of  military  service ;  but  it  is  not 
a  violation  of  any  international  obligation  for  one  state  to 
receive  a  person  whose  emigration  was  prohibited  by  his 
sovereign,  and  this  is  plainly'  implied  in  the  act  of  Congress 
above  quoted,  and  has  been  constantly  affirmed  by  the  Amer- 
ican government.^" 

Most  nations  have  abandoned  the  policy  of  restraining  emi- 
gration by  force,  and  the  United  States  has  never  had  occasion 
to  adopt  such  policy.  The  right  to  leave  the  country  would 
not  necessarily  draw  with  it  the  right  of  expatriation,  i.  e., 
the  right  to  throw  off  allegiance  and  citizenship;  but  the 
right  of  expatriation,  recognised  as  inherent  by  Congress, 
cannot  be  conceived  without  a  right  of  emigration.  The 
constitution  is  silent  upon  any  such  right,  and  the  question 
is  whether  a  limitation  of  governmental  powers  is  to  be  im- 
plied. The  arguments  in  favor  of  such  implication  are :  the 
fact  that  the  United  States  has  been  founded  upon  emigra- 
tion and  grown  by  expatriation,  the  constant  assertion  of 
the  liberty  of  emigration  as  against  other  nations;  and  the 
practice  of  our  legislation.  The  latter  argument  is  of  rela- 
tively little  strength,  as  governmental  inaction  which  is  fully 
explained  by  the  absence  of  any  need  of  action  cannot  be 
interpreted  as  a  confession  of  lack  of  power;  moreover  in 
restraining  immigration  the  United  States  has  shown  that  it 
does  not  interpret  the  inherent  right  to  emigrate  as  including 
the  right  to  be  received  by  other  nations,  and  yet  perfect 
freedom  of  migration  demands  leave  to  come  as  well  as  leave 
to  go.  The  implication  on  the  other  hand  is  strongly  nega- 
tived by  the  general  principle  that  the  right  of  territorial 
sovereignty  should  as  a  matter  of  law  remain  unim- 
paired, since  an  imperative  necessity  for  its  exercise  may 
arise.  The  traditions  of  the  policy  constantly  advocated  by 
the  American  government  are  sufficiently  strong  to  make  it 
extremely  improbable  that  Congress  will  attempt  to  restrain 
emigration ;  if.  however,  it  should  do  so,  directly  or  indirectly, 
it  is  just  as  improbable  that  the  Supreme  Court  would  deny  its 
power  to  act. 

lin's      Works      IV,      458,      against  lo  Wharton,  Digest  of  Internation- 

the  policy  and  justice  of  restraints     al  Law,  §  171-172a. 
on  emigration  in  connection  with  a 
proposed  act  of  Parliament. 


526  CIVIL  LIBERTY:    ECOiNOMIC.  §488 

It  is,  however,  very  clear  that  the  states  have  no  power  to 
prevent  emigration  to  foreign  countries,  since  that  would 
amount  to  a  regulation  of  foreign  commerce  or  of  international 
relations. 

§  488.  Right  to  come  into  a  state.— The  power  of  each 
state  to  keep  from  its  borders  persons  dangerous  to  health 
or  safety  has  been  discussed  before.^  ^  It  may  apply  to  persons 
coming  from  other  states  as  well  as  from  abroad ;  and  as  Con- 
gress has  not  legislated  upon  interstate  migration  as  it  has 
upon  iininigration,  the  power  of  the  states  may  still  be  called 
into  play.  Legislation  is  practically  confined  to  the  enforce- 
ment of  quarantine  in  case  of  epidemic  disease;  in  that 
emergency  powers  of  exclusion  are  exercised  and  sustained.' - 

Apart  from  measures  necessary  for  self-protection  of  this 
kind,  it  has  been  held  that  the  states  cannot  restrain  persons 
generally  from  leaving  the  state  or  passing  through  the  state, 
since  such  leaving  or  passing  may  be  necessary  for  the  exer- 
cise of  privileges  of  citizenship  of  the  United  States,  such  as 
going  to  the  capital  or  going  to  the  courts  of  the  United 
States.' =5  The  case  last  cited  was  decided  before  the  Four- 
teenth Amendment  became  law,  but  recognised  in  substance 
(me  of  the  principles  secured  by  that  amendment;  for  the 
right  to  travel  throughout  the  country  is  clearly  one  oi"  the 
privileges  and  immunities  of  national  citizenship. 

The  right  ol'  the  citizen  of  one  state  to  come  into  another 
state  and  sdtlr  there  is  guaranteed  by  Article  IV,  Section  2, 
of  the  Constiliilion.  granting  to  the  citizens  of  each  state  the 
privih'gcs  ol'  the  citiziMis  of  the  several  states. 

Before  the  Fourteenth  Amendment  was  added  to  the  Con- 
stitution, ;i  nuniber  of  states  |)i-ohil)iteil  th(>  itiimigration  of 
free  negroes  .iiid  ollu'i'  persons  of  cohn-  Ironi  other  stjites. 
A  provision  ol'  thai  cluiraeter,  though  now  ol'  no  t'lVect,  remains 
in  the  constitution  of  Oregon.'^  A  negro  :il  lii.il  lime  not 
being  a  citizen.  Article  |\',  Section  2,  ol  (he  Constitution. 
(lid  nut  apply.  L;i\vs  of  Soiilheni  stiiti's.  however,  exelnding 
coldfed  se;iiiieii  rriiiii  their  ports  wiTe  held  to  he  nnconstitu- 
tion;d   ;is   resti'Jiinls   upon   eoiniiieree.' ••     The  ex<-hision   ol'   free 

II  Her-  8    101,  supra.  laCrandiili  v.   N('v:i<l:i.  (!   WmII  .^.'5. 

laLouisiunji    v.   Tpx!»h,    170   U.    S.  "  Arl   1,  Sec.  .'{.'1. 

1;     CVmip,'ii,Mii<'     I'-r.'inciiiHO    v.    8tii1o  ir.  I   Dp.  Att.  Ooii.  O.IO ;  Tlic  Cynd- 

Hojinl  ..r  llr;illli,  lS(i  U.  S.  .SSn.  sure,    1    Spnifrnc  SS,   Fed.   Cases   No. 

3529. 


^489  INTERSTATE    MIORATIOX.  527 

negroes  from  settlement  was  sustained  in  the  state  courts;'*' 
and  it  is  not  unlikely  that  the  Supreme  Court  of  the  United 
States  would  have  treated  them  as  being  on  the  same  footing 
with  convicts  or  paupers,  i.  e.,  as  elements  dangerous  to  the 
peace  if  not  to  the  morals  of  the  community.  The  matter 
has  now  at  most  an  historical  interest. 

The  exclusion  of  aliens  must  be  beyond  the  power  of  the 
several  states.  The  protection  of  foreigners  rests  with  the 
government  of  the  United  States,  which  is  internationally 
responsible  for  their  treatment;  a  state  law  which  should 
deny  them  a  privilege  generally  conceded  by  international 
comity  would  therefore  be  an  unwarranted  interference  with 
the  prerogatives  of  national  sovereignty.  It  cannot  make  any 
difference  that  the  alien  comes  from  another  state,  and  not 
directly  from  abroad. 

§  489.  Emigration  from  a  state.— If  the  right  to  travel 
throughout  the  country  is  a  privilege  of  United  States  citizen- 
ship, a  state  cannot  prevent  its  citizens  from  visiting  other 
states;  and  since  the  motive  of  those  leaving  the  state  cannot 
be  inquired  into,  it  cannot  prevent  emigration.  In  some  states 
(Indiana,  Kentucky,  Oregon,  Pennsylvania)  the  right  to  emi- 
grate is  guaranteed  by  the  constitution.  A  few  of  the 
Southern  states  (Alabama,  North  Carolina,  South  Carolina, 
Georgia),  have  enacted  legislation  imposing  heavy  license 
taxes  upon  persons  engaged  in  the  business  of  hiring  laborers 
in  the  state  to  be  employed  beyond  the  limits  of  that  state. 
Except  where  the  license  fee  was  prohibitive, i"  these  laws 
have  been  upheld  by  the  state  courts,^ ^  and  also  by  the  United 
States  Supreme  Court,  on  the  ground  that  they  are  simply 
measures  of  taxation,  and  that  the  business  of  the  emigrant 
agent,  not  being  interstate  commerce,  is  liable  to  state  taxa- 
tion.'-' The  Supreme  Court  says  that  if  the  freedom  of  egress 
from  the  state  is  affected,  it  is  only  incidentally  and  remotely; 
but  it  also  admits  that  the  state  can  properly  discriminate 
in  its  police  and  fiscal  legislation  between  occupations  which 

16  Nelson   v.   People,   33   111.   390;  is  Williams  v.  Fears,  110  Ga.  584, 

Hatwood    V.    State,    18    Ind.    492;  35  S.  E.  699;  State  v.  Hunt,  129  N. 

Pendleton  v.  State,  6  Ark.  509.  C.  686,  40  S.  E.  216;   State  v.  Na- 

1- Joseph    V.    Randolph,     71     Ala.  pier,  63  S  C.  60,  41  S.  E.  13. 

499,    46    Am.    Rep.    347;     State    v.  i9  Williams    v.    Fears,    179    U.    S. 

Moore,  113  N.  C.  697.  270. 


528  CIVIL  LIBEETY:   ECONOMIC.  §  490 

tend  to  induce  the  laboring  population  to  leave  and  those 
which  tend  to  induce  that  population  to  remain.  In  view  of 
the  decision  in  Crandall  v.  Nevada-"  it  nmst,  however,  be 
assumed  that  no  direct  burden  or  restraint  could  be  laid  upon 
persons  desiring  to  migrate  from  state  to  state. 

§  490.     Movement  from  and  to  United  States  territories.— 

The  right  to  migrate  within  the  United  States  is  protected 
against  adverse  state  legislation,  because  it  is  one  of  the 
privileges  and  immunities  of  a  citizen  of  the  United  States; 
if  so,  it  ought  to  protect  against  federal  as  well  as  state  legis- 
lation, although  the  Fourteenth  Amendment  speaks  only  of 
the  latter;  for  the  privileges  secured  by  the  Fourteenth 
Amendment  are  fundamental,  and  fundamental  rights  under 
our  theory  of  government  cannot  be  abridged  by  legislation. 
No  attempt  has  hitherto  been  made  to  control  bj''  act  of 
Congress  the  right  of  citizens  to  move  from  place  to  place  or 
to  settle  in  any  place  within  the  United  States.  The  prohibi- 
tion of  settlements  on  Innds  granted  to  Indian  tribes-'  is 
directed  against  infringements  of  proprietary  rights,  and  the 
status  of  Indian  tribes  as  dependent  luitions  places  the  lands 
occupied  by  theju  outside  of  the  tei-ritory  to  which  the  com- 
mon rights  of  citizens  apply. 

'{'he  acquisition  of  foreign  possessions  is  apt  to  raise  new 
(lucstions  as  to  the  power  of  Congress  over  migration  and 
settlement:  Arc  United  States  citizens  as  free  to  s(>tth>  in  these 
po.ssessions  as  in  other  territories?  Will  the  inhabitants  of 
these  possessions  be  free  to  come  to  the  United  States,  as  a 
matter  of  constitutional  right?  The  cases  so  far  dccidi'd  l)y 
llic  Supreme  Court  do  not  answer  these  (juestions  directly, 
iioi-  do  tlicy  admit  of  any  clear  inference,  lint  there  is  reason 
1<»  suppose  that  the  desire  1o  keej)  Congress  unrestrained  by 
constitutional  limitations,  ^\  hi(di  is  nianifest  in  the  opinions 
of  the  majority  of  the  judges  in  the  insulai-  Cases,--  was 
induenced  by  the  cdiisidei-at  ion  that  il'  the  const  it  ul  ion  were 
fully  extended  to  the  tropical  possessions,  Congress  would  he 
f)owcrlcss  1o  inhibit  the  inllux  of  undesirable  (dements  into 
the  |>opulat  iitii  oT  the  rnited  States.  The  distinction  hetweeu 
incor|)oratcd    and    appnrl<iiaiil    territory,    emphasised    hy    dus- 

i:"()  W:ill.  .1.'').  22  Dowiu'H    v.     I'.'mUvcII,     ]SL'    II.    S 

2>  Unitcl    HlatCH    Rev.    Stat.,    Sec,      '244. 
2118. 


§  491  MIGRATION  AND  CITIZENSHIP.  529 

tices  White,  Shiras  and  MeKenna,  points  in  that  direction. 
If  it  is  held  that  the  new  possessions  are  not  part  of  the  United 
States,  persons  born  witliin  them  since  the  annexation  woukl 
not  fall  within  the  definition  of  citizenship  contained  in  the 
Fourteenth  Amendment,  and  whik»  it  might  still  be  con- 
tended with  great  force  that  by  the  common  law,  which  the 
Fourteenth  Amendment  did  not  intend  to  impair,  there  is  no 
difference  between  citizen  and  subject,  but  only  one  status 
of  allegiance,  yet  the  law  of  citizenship,  if  not  bound  by  the 
letter  of  the  constitution,  could  be  altered  by  Congress.  It 
seems  that  the  right  of  free  migration  is  the  only  incident  of 
citizenship,  to  the  grant  of  which  to  the  inhabitants  of  the 
new  possessions  there  is  strong  opposition ;  and  it  seems  to  be 
assumed  that  citizenship  carries  the  right  of  migration  and 
settlement  with  it  as  a  matter  of  course.  The  unity  of  the 
nation  and  of  the  territory  is  in  no  respect  marked  more 
strongly  than  in  the  freedom  of  movement  throughout  its 
extent,  and  the  restriction  of  that  freedom  with  regard  to 
any  part  of  that  territory  is  the  clearest  evidence  that  that 
part  is  to  be  treated  as  dependent  and  in  a  manner  foreign. 

§  491.  Migration  and  settlement  within  a  state.— If  it  is  a 
privilege  of  a  citizen  of  the  United  States  to  move  freely  within 
the  whole  country,  the  power  of  the  state  to  control  the 
migration  and  settlement  of  its  own  people  within  its  own 
territory  must  logically  be  denied,  for  the  whole  country 
includes  the  state.  But  apart  from  the  federal  constitution, 
the  right  of  each  individual  to  travel  about  and  to  choose  his 
residence  must  be  regarded  as  an  essential  part  of  the  liberty 
which  every  state  constitution  guarantees.  Experience  has 
shown  that  governmental  interference  with  the  natural  move- 
ment of  population  is  unwise,  oppressive  and  futile.  There  is 
nothing  in  modern  legislation  to  parallel  the  various  royal 
proclamations  issued  in  England  toward  the  end  of  the  six- 
teenth and  beginning  of  the  seventeenth  century,  prohibiting 
the  building  of  houses  in  the  London  suburbs,  because  with 
such  multitudes  many  must  live  by  begging  or  worse  means,^'^ 
or  directing  noblemen,  knights,  and  gentlemen  having  houses 
in  the  country  to  abide  there  until  the  end  of  the  sunnner, 
and    attend    to    their    duties.^-*     It   would    not    be    difficult    to 

23  1602;    3(1    Inst.    204,    XVI    Ey-  2-tl617  and   1622;   XVII  Rymer's 

mer's  Foedera  44<S.  Foedera,   14  7. 

34 


530  «  IVIL    LIBERTY:    ECONOMIC.  §491 

iiucl  plausible  arguments  iu  favor  of  a  policy  restraining 
migration;  so  where  depopulation  would  increase  to  those 
remaining  the  burden  of  municipal  indebtedness,  or  where 
country  districts  are  deserted  to  the  prejudice  of  agricultural 
interests,  or  where  the  excessive  growth  of  cities  seems  to 
produce  misgovernment  ;-^  but  all  such  considerations  are 
outweighed  by  the  great  advantage  which  the  individual  and 
indirectly  the  state  gains  from  absolute  liberty  of  movement. 
The  recognition  of  these  advantages  has  led  in  nearly  all 
civilised  countries  to  the  abandonment  of  the  policy  of  re- 
straint. The  state  may  offer  inducements  to  direct  migra- 
tion, and  may  use  the  proprietary  control  which  it  exercises 
over  public  lands  for  that  purpose;  but  individual  liberty  is 
not  thereby  impaired. 

If  legitimate  purposes  do  not  justify  the  impairment  of 
the  general  liberty  of  migration  and  settlement,  measures  for 
the  separation  of  classes  must  be  still  luoi-e  obnoxious  to  the 
constitution.  '  While  the  United  States  Supreme  Court  has 
sanctioned  compulsory  separation  of  white  and  colored  per- 
sons in  public  conveyances,  it  has  intimated  that  the  assign- 
ment of  separate  residence  districts  on  the  basis  of  color, 
creed  or  nationality  would  not  be  tolerated,  and  it  has  been 
held  that  Chinese  persons  cannot  ])e  compelled  to  live  in  one 
portion  of  a  city.^^  A  compulsion  of  this  character  will  al- 
most invariably  be  contrary  to  the  equal  protection  of  the 
laws. 

However,  as  lias  been  siiowii  before,^"  liberty  of  settlement 
cjiiiiKit  be  claiiiii'd  by  tliose  wlio  caimot  suj)port  thciiiselves, 
t'lpi-  llii'ir  taking  up  a  i-csidciicc  in  a  district  means  the  imposi- 
tion III"  a  pccuniai'v  hnrdcii  u|Hin  IIh'  (Miniiiinnity.  ilcncc 
pMuprrs.  i.  <■..  persons  actually  cliargcalilc  upon  Ihe  public, 
not  m<'n'ly  iikclx-  In  Ix'conit-  chargeable,  may  be  compelled 
to  remain  wIhtc  llicv  liavi'  tliei!'  domicile  and  may  l)e 
rcmo\-.'(|  Id  it,-"~  iind  a  vagrant  ma\-  he  punished  more  severely 

-•''  [n     <  iiTiiiMiiv     liic    i'sl;il)lisliiii('iit  -"In    re    I.cc    Siiiff,    4'^     Vr(\.    IN'p. 

(if  ii   new  "cohtny, "  i.  f^.,  .'iii   urt)aii  :<")!•.     Seo  §§  (i05)-700,  iufia. 

coin  mil  riity  ontHidc  of  existing  towns  '-'^  §  L'71,  Rit]>r<i. 

or  ("ifioB,  is  rnfjulaffd  by  biw  for  tlic  '-"  TjovoII     v.     Soeback,    •f.''i      Minn. 

piirpoHo    of     HOfuring      [irfi[)pr     pni-  Ki.'),   II   T-.  1{.  A.  6(57. 

vinioii   for  hcIiooIh,  etc.  'Ilic    rcHlraint    upon    pprsoTiH   likely 


;^  492  PURSUIT    OF    LIVELIHOOD.  531 

if  he  is  found  outside  the  county  of  his  residence.^''  In  these 
eases  the  restraint  of  liberty  is  justified  by  the  condition 
of  the  person  restrained,  and  does  not  rely  upon  considerations 
of  public  welfare  for  which  he  is  not  responsible.  Convicts 
on  parole  being  technically  prisoners  may  be  confined  to 
designated  districts. 

FREEDOM  OF  PURSUIT  OF  LIVELIHOOD.     §§  492-497. 

§  492.  Restriction  on  right  to  pursue  business  as  distin- 
guished from  regulation.  — The  freedom  of  engaging  in  a  busi- 
ness or  vocation  is  not  inconsistent  with  regulations  regarding 
the  manner  of  its  conduct  imposed  upon  one  of  the  recognised 
grounds  of  the  police  power.  This  freedom  is,  however,  im- 
paired not  merely  where  the  right  to  engage  in  a  business  is 
absolutely  denied,  but  also  where  it  is  made  to  depend  upon 
conditions  precedent  of  a  burdensome  or  discriminating  char- 
acter. The  following  restrictions  illustrate  a  policy  of  legis- 
lation which  has  on  the  whole  been  superseded :  those  making 
a  distinction  between  city  and  country,  confining  certain  pur- 
suits to  one  or  the  other ;3o  those  based  on  difference  of  sex; 
the  requirement  of  local  citizenship  or  membership  in  a  corpo- 
ration, exclusive  trading  privileges,  and  the  prohibition 
against  the  pursuit  of  several  trades  by  the  same  person.^i 
The  last  mentioned  form  of  restraint  was  not  uncommon  in 
the  early  English  legislation,^^  and  is  found  in  the  colonial 
laws  of  Massachusetts.^-'  At  the  present  day  restraints  con- 
sist either  in  the  requirement  of  a  license,  sometimes  coupled 
with  the  exaction  of  a  bond,  or  in  the  requirement  of  proper 
qualification,  generally  tested  by  examination;  in  a  few  cases 

to  become  chargeable  is  inconsistent  sons  living  in  the  country  not  to  sell 

with   constitutional   rights,    and   has  at  retail  in  the  city. 

been     abandoned     in     England     and  -i  All  these  were  abolished  by  the 

most  American  states.     Where  it  is  German    Trade    Code,    which    estab- 

still  retained,  as  in  Pennsylvania,  its  lished  the  principle  of  the  freedom 

effect  has  hardly  been  properly  con-  of  occupation. 

sidered  by  the  courts;  see  §  271,  su-  32  13  Ric.  II  St.   1,  c.  12,  tanners 

pra;  it  may,  however,  be  applied  to  not  to  be  shoemakers;   22  H.  VIII, 

immigrants;    see    Act    of    March    3,  cap.    6,    butchers    not    to    keep    tan 

1903,  32  Stat,  at  Large,  p.  1213.  houses;  23  H.  VIII,  cap.  4,  brewers 

29  State  V.  Hogan,  63  Ohio  St.  202,  not  to  be  coopers. 

58  N.  E.  572.  ■•! 3  Revised    Laws      1649,     butchers 

30  So  1  &  2  P.  &  M.  cap.  7,  per-     not  to  tan  leather. 


532  CIVIL  LIBERTY:   ECONOMIC.  §  493 

(railroads  and  insurance)  the  conduct  of  a  business  is  by  some 
laws  confined   to  corporations. 

§  493.     Classes  of  business  requiring  license.— An  examina- 
tion of  the  statutes  of  New  York,  ^Massachusetts  and  Illinois 
shows  that  in  either  one  or  more  of  these  states  the  following 
occupations   are   not   free   in   the   sense   just   indicated:     the 
business    of    architects,     auctioneers,     chiropodists,     dentists, 
druggists,  engineers  of  stationary  engines,  employment  busi- 
ness or  intelligence  offices,  embalmers,  horseshoers,  innkeepers, 
infants'  boarding  houses,  private  insane  asylums,  insurance  and 
insurance  brokerage,  junk  and  second-hand  dealers,  mine  man- 
agers, examiners  and  hoisting  engineers,  masters,  pilots  and 
engineers  of  vessels  operated   by   machinery,   liquor   dealers, 
keepers    of     places    of     amusement,     pawnbrokers,    peddlers, 
plumbers,  lawyers,  physicians,  surgeons  and  veterinary  sur- 
geons,   railroads    and    warehouses.      To    this    list    should    be 
added  from  other  states  barbers,  commission  merchants,  and 
opticians.     Legislation  in  all  states  has  been  very  active  in 
recent  years  in  filling  up  the  list,  in  which  no  account  is  taken 
of  trades  creating  nuisances   and  trades  using  highways  in 
a  special  manner  or  asking  special  privileges.^-* 

It  is  instructive  to  compare  this  list  with  the  list  of  trades 
and  vocations  excepted  by  the  German  trade  code  from  the 
principle  of  freedom  of  occupation.  This  includes:  useful 
l)nt  offensive  industries,  managing  steam  boilers,  keeping  of 
private  hospitals  and  asylums,  the  business  of  druggists, 
horseshoers,  pilots  mikI  nnvnl  engineers,  managers  of  i)l;iys, 
exhil)itions  and  aiiiuscmcnls,  innkeepers,  common  victuallers 
and  ii(iuor  sellers,  i)awnbrokers,  junk  and  second-hand  dealers, 
scavengers,  dealers  in  explosives,  dealers  in  lottery  tickets, 
auctioneers,  dilTerent  kinds  of  brokers,  peddlers,  surveyors, 
assayers,  weighers  (who  may  also  be  jjlaeed  nnder  oath), 
teachers  of  djincing,  sw  iimning  ••iiid  gymnastics,  emigrant 
agents,  ;iiid  llie  business  ol'  rdneation,  insurance,  rnili-onds, 
navig;i1i<iM   ;iml    mining. 

A     coiiiiuirison     between     llie     I  \\d     lists    sbows     .1     iii.'irked 


•I*  A    1i\iHincH8   wiiir-h   rcquircH  flpc-  of     street  railroads.       floddanl     v. 

cial    iirivilcjjcH,   which   cannnt   hv   in-  Chicago   &  N.    W.    liy.   (lo.,   'JO'J    111. 

diHcrimiiiatcly      boHtoweil,      can      nf  ;!()'_',  (5(5  N.  E.    10(50, 
coufHC  iiof  be  free,  ho  the  operation 


i^  494  PROTECTION  FKOM  COMPETiTION.  538 

similarity,  and  it  is  natural  to  ask  whether  it  is  possible  to 
discover  fixed  principles  underlying  the  restrained  trades,  and 
thus  establish  a  definite  scope  of  constitution;!  1  liberty  of 
pursuit  of  livelihood.  The  restrictions  thus  far  imposed  have 
been  uniformly  sustained  by  the  courts  except  in  cases  where 
there  was  some  element  of  unconstitutionality  not  going  to  the 
root  of  the  matter,  but  touching  merely  particular  provisions 
of  the  statutes,^^  and  the  Supreme  Court  of  the  United  States 
has  held  that  they  are  not  contrary  to  the  guaranties  of  the 
Fourteenth  Amendment.^" 

^  494.  Legitimate  grounds  of  restraint  and  protection  from 
competition.— In  an  earlier  portion  of  this  treatise  the  attempt 
has  been  made  to  assign  the  various  restrictions  to  the  several 
heads  of  the  police  power,  and  it  has  been  shown  that  they 
may  be  reduced  to  the  following  classification :  prevention  of 
crime  or  of  its  concealment  (pawnbrokers,  junk  dealers),  pro- 
tection of  morals  and  order  (liquor  selling,  public  amuse- 
ments), prevention  of  fraud  (peddlers,  auctioneers,  employ- 
ment offices,  insurance,  warehousing),  and  protection  of 
health  and  safety  (the  great  mass  of  other  restrictions). 

It  may  be  said  that  where  none  of  these  public  interests 
come  into  play,  there  is  no  warrant  for  the  exercise  of  the 
])olice  power,  but  it  must  be  asked  whether  this  limitation 
gives  adequate  protection  to  the  principle  of  liberty.     There 
are  few  trades  that  cannot  be  so  exercised  as  to  endanger  in 
a  remote  degree  health  and  safety,   or  so  as  to  expose  the 
public  to  fraud.     There  are  very  few  cases  indeed  in  which 
restrictions  will  be  avowedly  based  upon  the  desirability  of 
restraining  competition,  and  it  is  generally  conceded  that  the 
danger  of  competition  on  the  part  of  free  citizens  (the  com- 
petition of  convicts  and  of  foreigners  is  met  by  legislation) 
is  no  legitimate  ground  of  state  interference,  for  the  greatest 
and    most    successful    exertion    of    industry    and    genius    by 
legitimate  methods  cannot  be  regarded  as  detrimental  to  the 
public  welfare.     Thus  no   attempt  at  legislation   against  de- 

35  state  V.  Gardner,  58  Oh.  St.  599,      Lasher  v.  People,  183  111.  226,  55  N. 
51  N.  E.  136 ;  Bessette  v.  People,  193      E.  663. 

111.  334,  62  N.  E.  215,  56  L.  R.  A.  36  Dent  v.  West  Virginia,   129   U. 

558;    Harmon   v.   State,   66   Oh.    St.      S.  114;   Crowley  v.  Christensen,  137 
249,  64  N.  E.  117,  58  L.  E.  A.  618;      U.    S.    86;    W.    W.    Cargill    Co.    v. 

Minnesota,  180  U.  S.  452. 


534  CIVIL  LIBERTY:    ECONOMIC.  §  494 

partmont  stores  has  been  successful.''"     To  prevent  an  abuse 
of  the  police  power  for  the  alleged  protection  of  health  oi- 
safety  or  the  alleged  prevention  of  fraud,   the  courts  must 
be  allowed  to  judge  whether  restrictive  measures  have  really 
these  ends  in   view.     A  remote  and  slight  danger  should  not 
be  recognised   as   a   sufficient   ground   of  restriction,   and   the 
provisions  of  the  law  should  be  scrutinised   in   order  to   see 
whether  they  in  reality  tend  to  effectuate  their  object.     To 
illustrate:  a  law  of  Minnesota  requires  three  years'  apprentice- 
ship or  three  years  attendance  at  a  barbers'  school  and   an 
examination  of  every  person  who  wishes  to  pursue  the  avoca- 
tion of  a  barber,  the  person  must  be  free  from  infectious  or 
contagious    disease,    must    have    the    requisite    skill,    and    a 
knowledge  of  the  common  diseases  of  the  face  or  skin.     The 
law  is  sustained  by  the  supreme  court  of  the  state. -'^^     Yet  it  is 
clear  that  the  chief  danger  to  the  barbers'  customers  arises 
from  uncleanliness  in  the  care  of  the  instruments ;  the  law  has 
no  provision  guarding  against  that  danger,  while  its  require- 
ments  are   either  needlessly  strict  or   without   guaranties  of 
fulfilment.     Such   a   law  should   not   be  held   to   be   constitu- 
tional.    The  mediaeval  requirement  of  apprenticeship  to   all 
ordinary  trades  had  for   its   avowed   object   the   securing   of 
(M.iiipetent  workmanship,  better  service  to  the  publie,  and  "the 
improvement   of   the    commodity."     By    general   consent    the 
police  power  at  present  does  not  interfere  for  these  purposes. 
Even   for  the  prevention  of  fraud  only  those  forins  of  busi- 
ness   arc    restrained    which    i)resent   exceptional    facilities   for 
imposition    iii)()ii   tiie   public,   or  which  invite  the   i)ublic  con- 
fidence in  ;in  extraordinary  degree.     So  for  the  protection  of 
iriDcals  as  a  iMih'  only  tlntsc  pursuits  ;ifc  coiiti-olicd  which  liave 
;i  iiot<<i-ious  couueclion  wilh  vice  or  disorch'i'. 

As  the  (Inngcr  ol'  IViiud  ;iuii  ininior:ility  (h'pcnds  upon  1h(> 
character  (d"  the  person,  the  inetliod  ol"  restraint  is  nsnally  tlie 
rc(piii-eineid  <d'  :i  license  to  be  granted  in  tlie  free  (U-  .iudici;d 
discretion  of  jidniinistriilive  anlliorities.  The  const  it  ut  ionni 
;ispec1   (d'  su(di   discrelion   will   he  discussed    in   coune(dion   with 

•17  Htato  ex  rcl.  Wyiitt  V.  Ashbrook.  L.     U.     A.    Xl.      St.-vto    v.    ShurpiosH 

l.".t    Mo,  375,  48  L.  R.  A.  26.');   Chi-  (Wash.),    71    1'm<'.    7:57.    likewise    u|. 

lilfrn   V.    NctclliT,    is:',    111.    101,    IM    I..  lioMs     tlir     rr(|\ii rcmciil     of    :i     licciiH(> 

R.  A.  'jni.  •'">■  l>;irl)<'rs. 

.•|H8t:ilf    V,    7. •no,    70    Minn.    SO,    ■\H 


1^  495  CERTIFICATION  AND  LICENSE.  535 

the  principle  of  equality,  but  it  may  be  remarked  at  this 
])oint  that  there  has  been  a  noteworthy  tendency  toward  sub- 
stituting for  administrative  discretion  specific  grounds  of 
exclusion,  and  guaranties  by  bonds,  etc.,  against  the  misuse 
of  the  business  for  wrongful  ends.  While  this  tendency  is  not 
uniform,  and  cannot  be  said  to  have  ripened  into  a  constitu- 
tional principle,  it  represents  an  advance  towards  a  better 
recognition  of  constitutional  equality  than  the  system  of  ad- 
ministrative discretion. 

i5  495.  Certification  in  place  of  license.— As  for  trades  and 
jn'ofessions  affecting  health  ami  safety,  the  prevailing  opinion 
seems  to  be  that  tests  of  qualification  are  wise  and  necessary. 
This  would  be  most  readily  conceded  with  regard  to  the  prac- 
tice of  medicine.  The  German  law  substitutes  the  principle 
that  only  the  designation  as  physician  or  doctor  is  reserved 
to  those  who  have  complied  with  the  proper  tests  of  qualifica- 
tion; without  the  use  of  a  title  indicating  professional  stand- 
ing, any  one  may  practice  medicine.  In  recent  years  a  similar 
policy  has  been  adopted  in  several  American  states  with 
regard  to  the  business  of  accountants.  Those  passing  the 
prescribed  tests  may  call  themselves  certified  public  account- 
ants, but  the  business  of  accountant  remains  free  as  hereto- 
fore.^'' So  the  restrictions  upon  the  business  of  banking 
apply  as  a  rule  only  to  those  who  wish  to  do  business  under 
the  designation  of  bank,  indicating  an  institution  rather  than 
a  mere  private  business.  It  is  difficult  to  see  why  this  policy 
does  not  afford  all  the  guaranties  to  which  the  public  is 
entitled  or  w^hich  it  needs.  It  has  the  advantage  that  it  can- 
not be  used  for  the  restriction  of  competition.  It  would  cer- 
tainly strengthen  the  principle  of  constitutional  liberty,  if  in 
all  eases  where  a  business  is  liable  to  abuse,  the  license  based 
on  administrative  discretion  were  superseded  by  a  license  issu- 
able as  a  matter  of  right  upon  compliance  with  definite  legal 
requirements,  and  if  at  least  in  all  cases  in  which  the  public 
at  large  is  not  exposed  to  the  consequences  of  incompetency, 
a  right  to  public  certification  were  substituted  for  the  require- 
ment of  a  license. 

§  496.  Delegation  of  legislative  power,— Our  courts  being 
committed    to    a    less    liberal    theory    regarding    the    freedom 

39  New  York  Laws,  1896,  eh.  r.l'J,  Illinois,  Act  May  15,  1903. 


536  CIVIL  LIBERTY:    ECONOMIC.  §  497 

of  pursuit  of  livelihood  than  the  one  here  advocated,  it 
remains  to  inquire  whether  the  legislature  is  subject  to  any 
constitutional  limitations  in  requiring  licenses.  These  limita- 
tions would  have  to  be  found  either  in  the  principle  that 
legislative  powers  must  not  be  delegated,  or  in  the  principle 
of  equality.  It  has  been  held  in  Ohio  that  a  law  which  pro- 
vides for  a  license  if  the  examining  officer  finds  the  applicant 
trustworthy  and  competent,  without  further  specification,  is 
invalid  because  it  delegates  to  an  administrative  officer  a 
legislative  power.'**'  A  great  many  of  the  licensing  laws  on 
the  statute  books  would  probably  not  be  able  to  stand  such 
a  rigid  test ;  at  the  same  time  it  is  easily  satisfied  by  the 
specification  of  some  requirements  of  training  or  knowledge. 

§  497.  Principle  of  equality.— The  principle  of  equality  may 
be  involved  in  licensing  laws  in  various  ways.  The  require- 
ment of  professional  qualification  may  shut  out  corporations, 
a  point  which  has  been  noticed  in  Germany,  but  not,  it  appears, 
in  this  country.  To  a  great  extent  corporations  may  overcome 
this  disability  by  employing  officers  or  agents  duly  qualified; 
even  where  this  is  not  possible,  corporations  cannot  in  this 
respect  claim  equality  with  individuals.  Some  of  tlio  laws 
requiring  tests  of  qualification  apply  only  to  cities.  While 
this  would  not  violate  the  Fourteenth  Amendment'*^  it  may 
constitute  unconstitutional  special  or  local  legislation  under 
provisions  of  state  constitutions;  on  this  ground  the  horse- 
shoers'  act  of  Illinois  was  condemned.'*-  Discriminations 
may  occur  against  oi*  in  favor  of  non-residents,  those  already 
engaged  in  lln'  business,  or  those  carrying  on  the  business 
in  a  particular  manner,  or  special  classes  of  persons;  these 
will  be  noticed  hcreaftci-;  they  rarely  affect  essential  fea- 
tui-i's  of  the  legislative  poliey.'"'  The  most  impoi'lant  dis- 
eriiiiin;iti(iii  is  uii<lf)ul)1e(||y  1li;if  between  different  callings, 
leaving  some  \'vi-i\  while  imposing  i-esti-aints  upon  others;  but 
sneli  ;i  sin'jling  (Mil  nj"  special  el;isses  I'oi'  I'egulalion  has  not 
liitlierto   hecii   <|uesl  ionetl   dti   constitutional  grounds. 

»"  Ilariiioii  V.  Stiitp,  04  N.  E.    117,  ••''Sl.ili'    v.    riiirdiicr,    r,S    Oh.    St. 

mi  Oh.  St.  249.  .^!l!>,    II    I-.   K".  A.  fi,S9,  r^\  N.  E.  136; 

■"  MiHHouri     (Hiiwninn)     v.    TiOwiH,  Sfnlf  v.   WMf^oncr.  Hit   Minn.  20(5,  .3S 

101    ir.   S.   22;    T'.ikIiI    v.    \.'w    Y..rk.  L.    U.    A.    (i77;    Slule    v.    (iarbroaki, 

14:J  V.  H.  .'-)17.  Ml   l!..  496,  56  L.  R.  A.  570. 

*2Be»8ettP  V.  Pfoplo,  19.T  111.  3.14. 
62  N.  K.  215.  5r,  T,.  i:.  A.  r^r^H. 


§  498  FREEDOM  OF  CONTRACT.  537 

FREEDOM  OF  CONTRACT.  §§  498-503. 

§  498.  Contract  essential  to  property.— The  right  to  make 
contracts  is  in  some  respects  essential  to  the  enjoyment  of 
property.  The  constitutional  guaranty  of  property  rights 
would  be  deprived  of  much  of  its  value  if  the  legislature  had 
absolute  power  to  inhibit  acts  of  disposition  or  alienation 
(which  are  generally  contractual  acts),  or  to  annex  to  them 
arbitrary  or  imreasonable  conditions  of  consequences.  The 
right  to  contract  is  therefore  not  subject  to  legislative  power 
to  the  same  extent  or  in  the  same  sense,  as  the  right  to  transmit 
property  by  last  will. 

§  499.  Contract  part  of  civil  liberty.— But  the  liberty  of 
contract,  like  all  other  civil  libert.y,  is  subject  to  restraint 
and  regulation  on  behalf  of  the  public  welfare,  and  to  speak 
of  a  constitutional  liberty  of  contract  without  careful  qualifica- 
tion is  a  vague  and  meaningless  phrase.  The  liberty  of 
contract  yields  readily  to  any  of  the  acknowledged  purposes 
of  the  police  power,  and  it  differs  from  fundamental  con- 
stitutional rights,  from  the  liberty  of  the  body  or  person, 
from  the  right  of  property  (including  the  obligation  of  exist- 
ing contracts),  from  the  right  of  equality,  and  from  political 
liberty,  in  that  it  is  neither  a  vested  right,  nor  a  right  of 
definite  content,  nor  a  right  protected  by  specific  constitu- 
tional guaranties. 

§  500.  Freedom  of  contract  and  oppression.— A  constitu- 
tional right  of  freedom  of  contract  has  been  most  strongly  as- 
serted, and  has  received  some  recognition  on  the  part  of  the 
courts,  in  connection  with  protective  labor  legislation.  While  it 
is  conceded  that  contracts  may  be  forbidden  which  in  their 
effects  tend  to  injure  or  to  demoralise  the  public  at  large  (gam- 
bling contracts,  the  sale  of  liquor,  etc.),  it  is  insisted  that  where 
the  restraint  is  for  the  benefit  of  one  party  of  the  contract, 
it  is  illegitimate,  since  the  fact  of  agreement  shows  that  the 
party  to  be  protected  freely  consents  to  the  supposed  injury, 
and  that  the  state  has  no  business  to  force  a  benefit  upon  him 
against  his  will.  It  has  been  pointed  out  before^^  that  this 
argument  is  fallacious  in  the  case  of  wage  contracts  where 
the  voluntary  assumption  of  a  burden  by  one  may,  through 

*4  See   §    155,    in    connection   with     the  ease  Re  Morgan,  26  Col.  415,  47 

L.  R.  A.  52. 


538  CIVIL  LIBEKTY:   ECONOMIC.  §  501 

the  stress  of  competition,  force  others  to  assume  the  same 
burden  against  their  will. 

However,  even  if  the  restraint  is  looked  upon  as  protecting 
the  party  to  the  contract  from  his  own  acts,  and  not  from  the 
act  of  others,  it  is  maintainable,  as  long  as  prevention  of 
oppression  is  recognised  as  one  of  the  legitimate  grounds  for 
the  exercise  of  the  police  power.  Economic  oppression  regu- 
larly proceeds  with  the  apparent  consent  of  the  oppressed 
whose  weakness  compels  him  to  accede  to  onerous  terms,  and 
such  oppression  cannot  be  dealt  with  otherwise  than  by 
restraining  the  freedom  of  contract.  To  emphasise  this  free- 
dom in  the  face  of  oppression,  is  to  deny  the  legitimacy  of 
the  police  power  for  the  protection  of  economic  liberty ;  what- 
ever may  be  the  theoretical  strength  of  this  position,  it  does 
not  constitute  a  principle  of  constitutional  law. 

§  501.  Legislation  and  United  States  Supreme  Court.— 
Legislation  has  interfered  with  the  freedom  of  contract  for 
the  protection  of  one  of  the  parties  thereto,  chiefly  in  the 
following  matters:  rate  of  interest  on  money  loans,  limita- 
tion of  liability  for  negligence,  insurance,  and  payment  of 
wages  and  hours  of  labor.  Usury  laws  have  never  been  ques- 
tioned. The  Supreme  Court  of  the  United  States  has  recog- 
nised that  the  law  may  forbid  and  declare  invalid  any  stipula- 
tion whereby  a  liability  imposed  on  grounds  of  public  policy 
is  sought  to  be  evaded -.^•'^  it  has  also  maintained  a  statute 
requiring  insurance  companies,  in  case  of  total  loss  by  fire, 
to  pay  the  full  amount  of  the  policy,  less  depreciation,  not- 
withstanding a  provision  in  a  i^olicy  that  only  the  cash  value 
of  the  property  destroyed  should  be  paid;-*'"'  aiul  il  has  sus- 
tained the  protective  labor  laws  that  have  been  brought  be- 
fore it.-*' 

§  502.  Decisions  of  state  courts.  — The  decisions  of  state 
fciurts  (h'cljiring  in-olcctivc  hihor  h'gislat ion  unconstitutioiKil 
have  Ix'cn  considered  before.      Il   h^s  Ix'eii  seen  Ihnt   the  s1;il- 

*(■.  Missouri     Pjififi.'    H.    H.    < '<>.    v.  '7  Tloldon     v.     Unniy,     1(5!)    U.    S. 

Mackpy,  127  U.  S.  '205.  :'()fi,  cspocially  on   j).  35)7 ;   Kiioxvilh? 

<"  Orient     InHunmce    ('on)i):iiiy    v.  Iron  Co.  v.  TT.'irbison,   IS."?  IT.  S.  13; 

D.'ijjjjH,  17-  U.  S.  .'").'")7;  HOC,  also,  Dnj,'-  ■■>1h<>  »"  act  of  Conpross  for  the  pro- 

)iCT  V.   Mrcliari.  &    Traders'    Ins.   Co.,  t(ctiori    of   sailors,    I'.it  tcrsoii    v.   The 

n.'j  Tenn.  L'4.'5,  .TJ  S.  W.  .'").  'J8  L.  R.  Kndora,   I'.id  V.  S.    lO'.t. 
A.  796;  Phoenix  Ins.  ('o.  v.  Tievy,  12 
Tex.  Civ.   App.  4.'),  .'$.3  S.  W.  992. 


§  503  FREEDOM  OF  COi\ TRACT.  539 

utes  have  generally  contained  elements  of  discrimination 
which  the  courts  took  into  consideration  in  arriving  at  their 
decision,  but  the  Supreme  Court  of  Illinois  has  also  said  that 
chief  stress  should  be  laid  upon  the  violation  of  the  constitu- 
tional liberty  of  contract.-* '^  The  same  court  has,  however, 
used  other  arguments  in  denial  of  the  legislative  power.  Thus 
in  declaring  a  weekly  payment  law  unconstitutional  it 
I)oints  out  that  the  waiver  of  weekly  payments  may  under 
circumstances  be  beneficial  to  the  employees  ;-*'-^  again,  in  annul- 
ling the  coal  weighing  act  of  1887  it  dwells  upon  the  fact  that 
the  non-compliance  with  the  statute  was  perfectly  satisfac- 
tory to  the  employees,  who  would  have  been  prejudiced  by 
its  enforcement.'^"  Such  considerations  cannot  be  conclusive 
against  the  validity  of  police  regulations,  which  can  rarely  be 
framed  in  such  a  manner  as  to  work  beneficially  in  all  cases; 
the  same  arguments  might  be  used  against  the  usury  laws  with 
greater  force,  and  a  similar  plea  was  held  untenable  by  the 
Supreme  Court  of  the  United  States  in  the  case  of  the  Joint 
Traffic  Association. ■'^1  The  power  of  regulation  in  such  cases 
includes  a  power  of  unwise  regulation ;  the  state  does  not  act 
upon  the  assumption  of  superior  wisdom,  but  upon  the  convic- 
tion that  the  laborer  is  generally  not  in  a  position  to  exercise 
free  judgment,  and  that  "where  the  number  of  employees  is 
such  that  specific  contracts  with  each  laborer  would  be  im- 
probable, if  not  impossible,  in  general  contracts  justice  shall 
prevail.  "^2 

§  503.  Formulation  of  principle.— The  general  principle  of 
police  regulation  of  the  liberty  of  contract  may,  perhaps,  be 
formulated  as  follows :  Where  a  contractual  relation  is 
voluntarily  entered  into,  rights  and  obligations,  which  are  con- 
formable to  the  nature  of  the  relation,  may  be  defined  by  the 
law  and  made  conclusive  upon  the  parties  irrespective  of 
stipulations  attempting  to  set  them  aside,  especially  where 
such  stipulations  involve  the  waiver  of  valuable  personal 
rights,  or  where  they  are  virtually  imposed  by  one  party 
without  power  of  choice  on  the  part  of  the  other. 

48  Vogel  V.  Pekoe,  l.'S?  Til.  R3f),  .30  si  United    States    v.    Joint    Traffic 

L.  R.  A.  491.  Association,  171  TT.  S.  505. 

40  Bracevillc    Coal    Co.    v.    People,  52  State  v.  Peel  Splint  Coal  Co.,  30 

147  111.  66.  W.  Va.  802. 

MHardintr  v.  People,  160  111.  459, 
32  L.  R.  A.  445,  43  N.  E.  624. 


FUNDA:\rENTAL  RIGHTS. 

SECOND :     PROPERTY. 

VESTED  RIGHTS  UNDER  THE  POLICE  POWER. 

CHAPTER  XXIV. 

APPROPRIATION,    INJURY,    AND  DESTRUCTION. 

A.     TAKING  FOR  PUBLIC  USE.     APPROPRIATION.      §§   50-4-506. 

§  504.  Principle  of  law  of  nature.— It  is  a  settled  principle 
of  public  law  that  private  property  may  be  taken  when  the 
public  welfare  recjuires  it.  The  mediaeval  jurists  who  were 
far  from  admitting  that  the  power  of  the  state  over  private 
property  was  absolute,  yet  recognised  that  it  might  be  taken 
for  just  cause,  and  public  necessity  constituted  a  sufficient 
cause.  Wliere,  however,  the  private  was  thus  made  to  yield 
to  the  public  interest,  a  duty  of  compensation  was  urged  on 
principles  of  natural  equity.^  The  principle  received  its  defin- 
ite formulation  under  the  doctrines  of  the  law  of  nature. 
Grotius  expresses  it  as  follows :2  "This  also  is  to  be  noted 
that  a  right,  even  when  it  has  been  acquired  by  subjects,  may 
be  taken  away  by  the  King  in  two  modes;  either  as  a  penalty, 
or  by  force  of  eminent  domain.  But  to  do  this  by  the  force  of 
eminent  domain,  there  is  required  in  the  first  place,  public 
utility;  and  next,  lli.il  if  possible,  compensation  be  made  to 
liitii  who  has  h)st  what  was  his,  at  the  common  expense;  and 
as  this  holds  with  i-cgard  1o  other  matters,  so  does  it  with 
regard  to  rights  which  are  acquired  by  pi-oiiiisc  or  contract." 

v;  505.  Doctrine  of  English  law.  — In  England  the  principle 
of  compensation  was  rstaljlishcd  ;il  .m  cai'ly  date  with  regard 
1o  thr  kiii^-'s  right  of  purveyance  for  the  i-oyal  honschold 
which  was  in  ana!o^\-  1o  the  talsing  i'or  public  use.-'  Later  on 
it  became  the  rule  Ili;it  every  taUiiig  ol"  property  i-iMpiired  the 
sanction   of  ;in    ;ict  of   Parliament,   and    Parliament   regularly 

'  riii'rkc,  (MMioHHfii.schfiftHrociil,   III.  •' M.-ij^nn     T'li.-irtM,    r.    12S,    2     Inst. 

(il7,    niH.  541,   4    IiiHt.    KiC),   HliickHtoiio   T    L'S7, 

-  Pr  jinr  hrlli  rl  pads.   II.    1  I,  7.        L'SS.  Broom's  Const.  L:nv  .'^M-.'^OG. 

540 


§  5UG  APPROPRIATION   FOR   PUBLIC   USE.  541 

provided  for  compensatiou.  Blaekstone  speaks  of  the  ri^ht 
of  eminent  domain  as  follows :■*  "So  great  moreover  is  the 
regard  of  the  law  for  private  property  that  it  will  not  author- 
ise the  least  violation  of  it ;  no,  not  even  for  the  general  good 
of  the  whole  commnnit}'.  If  a  new  road  for  instance  were  to 
l)e  made  through  the  grounds  of  a  private  person,  it  might 
perhaps  be  extensively  beneficial  to  the  public;  but  the  law 
permits  no  man,  or  set  of  men,  to  do  this  without  consent  of 
the  owner  of  the  land.  In  vain  may  it  be  urged,  that  the  good 
of  the  individual  ought  to  yield  to  that  of  the  community; 
for  it  would  be  dangerous  to  allow  any  private  man,  or  even 
any  public  tribunal,  to  be  the  judge  of  this  common  good,  and 
to  decide  whether  it  be  expedient  or  not.  Besides  the  public 
good  is  in  nothing  more  essentially  interested,  than  in  the  pro- 
tection of  everj^  individual's  private  rights,  as  modeled  by  the 
municipal  law.  In  this  and  similar  cases  the  legislature  alone 
can,  and  indeed  frequently  does,  interpose,  and  compel  the 
individual  to  acquiesce.  But  how  does  it  interpose  and  com- 
pel? Not  by  absolutely  stripping  the  subject  of  his  property 
in  an  arbitrary  manner ;  but  by  giving  him  a  full  indemnifica- 
tion and  equivalent  for  the  injury  thereby  sustained.  The 
l)ublic  is  now  considered  as  an  individual,  treating  with  an 
individual  for  an  exchange.  All  that  the  legislature  does  is  to 
oblige  the  owner  to  alienate  his  possessions  for  a  reasonable 
price;  and  even  this  is  an  exertion  of  power  which  the  legis- 
lature indulges  with  caution,  and  which  nothing  but  the  legis- 
lature can  perform." 

§  506.  American  constitutions  and  Fourteenth  Amendment. 
—In  America  the  right  to  compensation  is  secured  by  the 
federal  and  most  state  constitutions.  It  has  been  said  that  the 
right  to  take  for  public  use  is  inherent  in  sovereignty,  and  the 
constitutional  provision  for  compensation  merely  a  positive 
limitation  upon  the  right  ;^  but  as  a  matter  of  fact  the  taking 
for  public  use  Avithout  compensation  has  never  in  any  civilised 
country  been  regarded  as  a  legitimate  exercise  of  state  power, 
and  the  payment  of  compensation  is  therefore  correctly  held 
to  be  a  requirement  of  due  process  under  the  Fourteenth 
Amendment.  ''Due  process  of  law  as  applied  to  judicial  pro- 
ceedings instituted  for  the  taking  of  private  property  for  pub- 

4  Commentaries,  I,  139.  U.   S.  403;   United   States   v.   Jones, 

^Boom  Company  v.  Patterson,  98     109  U.  S.  513. 


542  APPEOPEIATION,    INJUEY,   AND  DESTEUCTION.       §  507 

lie  use  means  such  process  as  recognises  the  right  of  the  owner 
to  be  compensated  if  his  property  be  wrested  from  him  and 
transferred  to  the  public.  The  mere  form  of  the  proceeding- 
instituted  against  the  OAvner,  even  if  he  be  admitted  to  defend, 
cannot  convert  the  process  used  into  due  process  of  law,  if  the 
necessar}^  result  be  to  deprive  him  of  his  property  without 
compensation.  "6  Compensation  is  indeed  a  logical  outgrowth 
of  the  principle  of  equality  which  demands  that  no  burden  be 
imposed  upon  a  person  from  which  others  are  free  unless  there 
is  some  causal  connection  between  him  or  his  property  and  the 
condition  which  the  burden  imposed  upon  him  is  intended  to 
relieve ;  "  it  prevents  the  public  from  loading  upon  one  individ- 
ual more  than  his  just  share  of  the  burdens  of  government,  and 
says  that,  when  he  surrenders  to  the  public  something  more 
and  different  from  that  which  is  exacted  from  other  members 
of  the  public,  a  just  and  full  equivalent  shall  be  returned  to 
him.  "7 

INJUEY.     §§  507-510. 

§  507.  Property  injuriously  affected  under  acts  of  Parlia- 
ment.—On  principle  there  can  be  no  difference  between  appro- 
priation for  public  use  and  injury  done  to  private  property  in 
the  course  of  a  public  undertaking.  An  injury  to  property  is 
practically  a  partial  taking  of  it.  In  England  Avhere  the  riglit 
to  compensation  always  rests  upon  the  act  of  Parliament  which 
authorises  the  taking,  the  failure  of  the  act  to  make  provision 
for  injury  done,  must  defeat  the  right.  The  generally  accepted 
doctrine  is  that  injury  to  private  property  occasioned  by  the 
careful  prosecution  of  some  enterprise  authorised  by  act  of 
l';iiliament  gives  no  cause  of  action  for  damages,  where  no 
provision  is  made  for  compensation  lo  those  "injuriously  af- 
fected,"** since  Parliament  in  legalising  the  object  h;is  legal- 
ised llie  necessary  nie;ins.  In  tiiis  docti-ine  the  legni  onuiijio- 
tence  of  l';i!-Ii;inieiit  opefiites  to  the  detriment  of  pi-iv;ile  prop- 
erly i-iglits.''  lint  llie  provision  foj*  eompensation  to  lliose 
injniMonsly  jtCfeeted  is  ;i  comiiiioii  one  .-md  has  been  enibiKlied 
in  the  LmikIs  Chinses  f'onsolidnl  ion  Act  of  1845,  which  has  in 
a  niiinni'?-  eodilicd  the  l']n!jlis|i  l;i\v  of  condemnation. 

"Chicago.   |{.  &  (.1   n.  Co.   V.   Clii-  "Siittoii    v.    Clarko,    6    T:nint    20; 

nttio,   1(5(5  TJ.  S.  TdC).  (iovcnior  &<•.    of   liritisli    (':is1    I'latr 

T  Monoiifjahola    Navijration    ('<..    v.  Miuin  liirl  m-crH  v.   Mcrcditli,    f    'P.    U. 

I  iiilfd  MtatcH,   MS   V.  H.  rJlL'.  794.     Sc.-,   lu.wcvcr.    header  v.    Mox- 

«  Pollock,  TorlH,   I'Jfi,  l'J7.  loll,  :{  Wils.    Mil. 


§  509  PHYSICAL  INVASION.  543 

55  508.  Physical  invasion.  — in  America  the  Englisli  rule  has 
sometimes  been  stated  to  be  a  rule  of  the  common  law  applica- 
])le  in  this  country;'"  but  the  constitutional  principle  which 
forbids  taking:  must  also  forbid  injury  without  compensation." 
The  prineii)lc  has  been  enforced  with  regard  to  direct  en- 
croachments upon  and  physical  invasions  of  property. 

"It  would  be  a  very  curious  and  unsatisfactory  result,  if  in 
construing  a  provision  of  constitutional  law,  always  under- 
stood to  have  been  adopted  for  protection  and  security  to  the 
rights  of  the  individual  as  against  the  government,  and  which 
has  received  the  commendation  of  jurists,  statesmen  and  com- 
mentators as  placing  the  just  principles  of  the  common  law  on 
that  subject  beyond  the  power  of  ordinary  legislation  to  change 
or  control  them,  it  shall  l)e  held  that  if  the  government  refrains 
from  the  absolute  conversion  of  real  property  to  the  uses  of 
the  public,  it  can  destroy  its  value  entirely,  can  inflict  irrep- 
arable and  permanent  injury  to  any  extent,  can  in  effect 
subject  it  to  total  destruction  without  making  any  compensa- 
tion, because,  in  the  narrowest  sense  of  that  word,  it  is  not 
taken  for  the  public  use.  Such  a  construction  would  pervert 
the  constitutional  provision  into  a  restriction  upon  the  rights  of 
the  citizen,  as  those  rights  stood  at  the  common  law,  instead 
of  the  government,  and  make  it  an  authority  for  invasions 
of  private  right  under  the  pretext  of  the  public  good,  which 
liad  no  warrant  in  the  laws  or  practices  of  our  ancestors."^- 

The  rule  has  been  applied  to  the  overflowing  of  land  by  the 
erection  of  dams,  or  booms,^'^  to  the  dredging  of  flats,^^  and  to 
the  temporary  occupation  of  land  for  a  militia  encampment,'"' 
or  for  a  hospital.'" 

§  509.  Doctrine  of  consequential  damages.— Cases  in  which 
compensation  has  been  denied  will  be  found  to  go  on  the 
theory  that  there  has  been  no  invasion  of  any  right,  and  hence 

loEigney  v.   Chicago,   102   111.   64,  Murdock   v.    Stickney,   8    Cush.    113, 

71 ;  Transportation  Company  v.  Chi-  doubting  whether  it  should  be  called 

cago,  99  U.  S.  635,  641.  taking  or  not. 

11  Eaton  V,  Boston,  Concord,  etc.,  i*Bent  v.  Emery,  173  Mass.  495, 
R.  R.  Co.,  51  N.  H.  504.  53  N.  E.  910. 

12  Pumpelly  v.  Green  Bay  &c.  Co.,  is  Brigham  v.  Edmands,  7  Gray. 
13  Wall.  166;  Eaton  v.  Boston,  Con-  359. 

cord  &c.  R.  Co.,  51   N.  H.  504.  i"  Spring  v.  Hyde  Park,  137  :Mass. 

13  Grand   Rapids   Booming   Co.    v.     554. 
Jarvis,  30  Mich.  308,   §  409,  supra; 


544  APPKOPKIATJON,   INJUEY,   AND  DESTRUCTION.       §  510 

no  legal  injury.  Thus  where  property  is  subject  to  an  ease- 
ment or  servitude  in  favor  of  the  public,  what  would  other- 
wise be  an  invasion  or  a  taking,  has  been  held  to  be  the  exer- 
cise of  a  public  right,  so  that  no  compensation  is  due :  so  in  the 
case  of  improvements  made  on  navigable  waters  in  the  interest 
of  navigation,!^  or  under  laws  recognising  a  public  servitude 
over  riparian  lands  for  the  construction  of  public  works.^^ 

The  denial  of  any  liability  to  compensation  in  the  case  of 
what  are  called  consequential  damages,  likewise  rests  on  the 
theory  that  there  is  no  legal  right  taken  or  injured  in  the 
prosecution  of  the  public  work  or  enterprise.  It  was  held  at  a 
comparatively  early  date  that  there  is  no  cause  of  action  for 
digging  down  the  street  by  the  plaintiff's  dwelling  house  and 
taking  away  the  earth  so  as  to  lay  bare  the  foundation  walls 
of  the  house,  causing  a  danger  of  its  falling,  this  damage  being 
regarded  as  consequential  ;!^  and  this  doctrine  has  been  ac- 
cepted in  all  the  states  except  in  Ohio.-^  The  prevailing  doc- 
trine denies  to  the  owner  of  property  abutting  on  a  street  a 
right  or  easement  to  have  that  street  continued  in  a  condition 
as  favorable  to  him  as  it  happens  to  be  or  to  have  been  when  he 
made  his  improvements ;  whatever  rights  he  may  have  are 
subject  to  the  superior  right  of  the  public  to  make  further 
improvements  for  street  purposes. ^^ 

§  510.  Modifications  of  doctrine.— This  doctrine  was  modi- 
fied or  further  defined  by  the  New  York  elevated  railroad 
cases  to  the  effect  that  the  adjoining  owner  has  a  right,  which 
is  a  property  right,  to  have  the  street  kept  unimpaired  as  a 
public  street  with  the  incidental  benefits  of  light,  air  and  ac- 
cess, and  that  while  this  right  is  subject  to  the  power  to  control 
the  public  uses  of  the  street,  the  power  does  not  include  the 
authorisation  of  a  structure  which  is  subversive  of  and  repug- 
nant to  the  uses  of  the  street  as  an  open  public  street.-^    Even 

17  Scriiiit(in   V.  Wheeler,   179  U.  S.  The  same  principle  was  applied  to 

111.     Hoc  8§  403-408,  suina.  other  undertaking-s  of  a  j)ubli('  char- 

'"  Khlridj^e    v.    Trezevant,    TOO    TT.  actcr   iini);iiriii}r    the   value   of   exist- 

S.  A')'l;  see  §  409,  supra.  ing    iniprovomeiits,    an    a    ])icr    and 

1"  Tallender  V.  Marsh,  1    l'i(k.   117,  hasin    constructed    iiiulcr    legislative 

382.3.  authority  which  iMi|)('(lcil  access  to  a 

'-'"  Mcf'o!nliH  V.  Akron,   1.'  Oli.  47.'),  wharf.    Lansing  v.  Smith,  4  Wend.  9. 

184(5.  -'.JHtory    v.     New     York     Elevated 

21  Dilh.n    Municipal    Corporal  ions.  \l.  Co.,  90  N.  Y.  122,  Dillon  §§  723a- 

§§  987-99.5C.                               •  727,  (J.'ifia-fi.^ec. 


§  510  COx\SEQUENTlAL    DAMAGES.  545 

a  change  of  street  grade  cannot  be  made  for  railroad  purposes 
so  as  practically  to  exclude  the  abutting  owner  from  the  part 
of  the  street  occupied  by  the  railroad,  without  compensating 
him  for  the  injury  suft'ered.^^ 

In  Massachusetts  a  statutory  right  to  damages  for  injury 
done  by  change  of  grade  was  created  in  pursuance  of  a  sug- 
gestion made  by  the  court  in  Callender  v.  IMarsh,^-*  and  similar 
provision  is  made  in  other  states,  including  the  state  of  New 
York  under  special  city  charters-^i^ 

In  Illinois  and  a  number  of  other  states  the  Constitution  has 
been  so  changed  as  to  provide  that  private  property  shall  not 
be  taken  or  damaged  for  public  use  without  compensation,  and 
it  has  been  held,  in  view  of  the  reason  for  the  adoption  of  the 
amendment,  that  this  change  means  the  creation  of  a  liability 
for  consequential  damages,  especially  for  those  resulting  from 
a  change  of  street  grade.2<5 

The  constitutional  change  like  the  statutory  remedy  may 
also  be  regarded  as  carrying  the  doctrine  of  the  elevated  rail- 
road cases  to  the  point  of  recognising  that  an  owner  of  prop- 
erty adjoining  a  public  highway,  who  has  been  practically 
invited  to  adjust  his  improvements  to  that  highway,  has  so 
strong  ail  equity  to  have  the  highway  substantially  preserved 
in  the  condition  necessary  to  the  continued  enjoyment  of  the 
improvements,  that  such  equity  should  be  given  the  effect  of  a 
right  of  property.  It  is  therefore  not  every  inconvenience  or 
depreciation  of  value  caused  by  a  public  improvement  for 
which  the  constitutional  or  statutorj^  provisions  in  question 
give  a  right  to  compensation, 2"  but  only  the  impairment  of 
some  benefit  which  is  so  directly  inherent  to  the  property  that 
it  can  be  recognised  as  part  of  the  legal  right  or  as  in  the 
nature  of  an  appurtenant  easement,  the  impairment  thus  con- 
stituting a  legal  injury .28     The  doctrine  of  non-liability  for 

23Keming  v.  New  York,  L.  E.  &  in    O'Connor   v.    Pittsburgh,   18   Pa. 

W.  E.  Co.,  128  N.  Y.  157,  187. 

24  Massachusetts    Kev.    Laws,    ch.         -'c  Chicago    v.    Taylor,    125    U.    S. 
48,  §  14.  161;   contra,  see  Austin  v.  Augusta 

25  Fuller  V.  Mt.  Vernon,  171  N.  Y.  Terminal  R.  Co.,  108  Ga.  671,  47  L. 
247,  63  N.  E.  964 ;  Coster  v.  Albany,  R.  A.  755. 

43  N.  Y.  399,  417   (statutory  provi-  27  Aldrich   v.    Metropolitan   W.   S. 

sion   in    consequence    of   decision    in  El.  R.  Co.,  195  111.  456,  63  N.  E.  155, 

Lansing    v.     Smith,     4    Wend.     9).  57  L.  R.  A.  237;  Frazor  v.  Chicago, 

So    Pennsylvania    Constitution,    Art.  186  Til.  480,  57  N.  E.  1055. 

XVI,  §  8,  in  consequence  of  decision  28  The  same  view  has  been  taken 

35 


546  APPEOPRIATIOX,   INJUEY,   AND  DESTEUCTION.       §  511 

consequential  damages  remains  therefore,  in  principle,  undis- 
turbed, and  does  not  contravene  the  constitutional  protection 
of  property  rights,  either  under  the  state  constitutions  or 
under  the  Fourteenth  Amendment.^*^ 

B.     TAKING   TO   WARD   OFF  PUBLIC  INJUEY.     §§  511-517. 

§  511.  Difference  between  police  power  and  eminent  domain, 
and  principle  of  compensation.— The  constitutional  prohibition 
against  taking  px'operty  for  public  use  without  compensation, 
applies  to  injury  and  destruction  as  well  as  to  appropriation, 
and  it  applies  no  matter  for  what  purpose  the  property  is 
taken.  If  it  is  recognised  that  a  change  of  grade  entitles  to 
damages,  the  right  cannot  be  denied  on  the  ground  that  the 
change  was  demanded  by  considerations  of  public  safety.  The 
rule  "has  never  been  qualified  or  limited  by  the  object  or 
purpose  which  the  municipality  had  in  view  in  ordering  the 
change.  "^'^  Thus  while  the  effect  of  erecting  a  smallpox  hos- 
pital upon  the  value  of  surrounding  property  is  consequential 
damnum  absque  iHJuria,^^  private  property  cannot  be  ai-)]-»ro- 
priated  as  a  hospital  without  compensation.-"^ 

If  we  differentiate  eminent  domain  and  police  power  as  dis- 
tinct powers' of  government,  the  difference  lies  neither  in  the 
form  nor  in  the  purpose  of  taking,  but  in  the  relation  which 
the  property  affected  bears  to  the  danger  or  evil  which  is  to 
be  provided  against. 

Under  the  police  power,  rights  of  property  are  impaired  not 
because  they  become  useful  or  necessary  to  the  public,  or 
because  some  public  advantage  can  be  gained  by  disregarding 
them,  but  l)ecause  their  free  exercise  is  believed  to  be  detri- 
mental to  i)ublic  interests;  it  may  be  said  that  the  state  takes 
property  by  cinincnt  domain  because  it  is  useful  to  the  public, 

of    the    statutory    compensation    for  works    not    been    authorised    by    tlio 
damage  done  in  tiie  execution  of  llie  statute,  would  have  given  Iho  claim- 
English   Public  Health  Act;    II.ill   v.  :int  a  right  of  action. 
Mayor  of  Bristol,  L.  E.  1'  C  I*.  322.  20  Meyer   v.   Eichmond,   172   U.   S. 
Till'   |.rinci]de  has   been   well   put  by  82;    also    Marchant   v.    Pennsylvania, 
saying    that    a    person    who    sustains  Eailroad  Company,  15.S  U.  S.  3S(). 
injury   from    the  execution   of  worlfs  •-">  City  of  (.'hicago  v.  Jackson.   1!M; 
authorised    by    statute    is    not,    gen-  ill.   lOfi,  63  N.  E.  101.^ 
erally  speaking,  entitled   to  compen-  ■"  Frnzer  v.  Chicago,  1  sn  Til.    ISO, 
sation       under       the       compensation  57  N.  E.  1055. 

clauses  of  the  statute,  uidess  the  in-  •■!•-;  Spring  v.  Tlyde  P:nk,  137  iMass. 

jury   sustained    is   such    as,   had    the  554. 


§512  TAKIXC    TO    WARD   UI'F    INJURY.       ♦  547 

and  luieler  Ihc  police  power  because  it  is  lianuiul,  or  as  Justice 
liradiey  put  it,  because  "the  property  itself  is  the  cause  of 
the  public  detriment. "•'•' 

From  this  results  the  difference  ])etween  the  power  of  emi- 
nent domain  and  the  police  power,  that  the  former  recognises 
a  right  to  compensation,  while  the  latter  on  principle  does  not. 

§  512.  Appropriation  generally  outside  of  the  police  power. 
—  The  exercise  of  the  police  power  can  hardly  result  in  appro- 
priation of  property  by  the  public,  unless  it  be  by  way  of  con- 
fiscation as  a  penalty  or  for  the  purpose  of  destruction;  for 
if  the  property  is  dangerous,  it  is  dangerous  in  the  hands  of 
the  public  as  well  as  of  the  private  owner,  and  if  the  danger 
can  be  met  by  regulation,  such  regulation  is  possible  while  the 
property  is  left  to  the  owner;  appropriation  can  be  necessary 
only  where  possession  is  of  positive  value  to  the  public ;  and  if 
so,  there  is  really  a  case  of  eminent  domain."'^  Thus  if  a  person 
affected  with  a  contagious  disease,  dangerous  to  the  public 
health,  is  in  such  a  condition  that  he  cannot  be  removed,  the 
house  in  which  he  is  may  be  considered  as  a  hospital,  and  per- 
sons residing  there  may  be  subjected  to  regulations  of  the 
board  of  health ;  this  is  merely  regulation ;  but  the  house  can- 
not be  seised  or  taken  possession  of  by  the  health  authorities 
without  compensation. 2^ 

§  513.  Prejudicial  regulation  without  compensation.— The 
normal  form  of  impairment  of  property  rights  under  the  police 
power  is  restraint  or  regulation  which  leaves  the  property 
physically  intact,  and  merely  compels  the  owner  to  exercise 
his  right  over  it  in  a  certain  manner.  In  so  far  as  the  regulated 
exercise  results  in  changes  which  diminish  value  or  profits, 
the  practical  effect,  although  not  the  legal  aspect,  is  that  of 
injury  to  the  property.  Where  no  fault  is  imputable  to  the 
owner,  a  compensation  for  his  loss  may  be  equitable ;  so  the 
English  Public  Health  Act  of  1875  provides  that  where  any 
person  sustains  any  damage  by  reason  of  the  exercise  of  any 
of  the  powers  of  the  act,  in  relation  to  any  matter  as  to  which 

33  Davidson  v.  New  Orleans,  96  TJ.  compensation. ' '  Proprietors  of  Mt. 
S   97.  Hope  Cemetei-y  v.  Boston,  158  Mass. 

34  "That  power  [the  police  power]      509. 

does  not  extend  so  far  as  to  include  sr,  Spring  v.  Hyde  Park,  137  Mass. 

a    right    to    require   the   transfer   of     554. 
property  to   another  person   without 


54^  APPEOPKlAT10.\,    IxXJURY,    AND  DESTRUCTION.       j;  514 

he  is  not  himself  in  default,  full  compensation  shall  be  made 
to  such  person  by  the  local  authority  exercising  such  powers  ;^*'' 
but  in  the  absence  of  such  provision  it  is  sufficient  that  the 
owner  has  the  benefit  of  the  property  or  occupation  which  is 
the  occasion  of  the  danger,  and  that  where  the  prevention  of 
the  danger  requires  a  burden,  the  burden  should  accompany 
the  benefit.  Restrictive  regulation  is  therefore  regularly  im- 
posed without  compensation. 

§  514.  Justification  of  such  regulation.— The  absence  of 
compensation,  however,  makes  the  police  power  much  more 
incisive  in  operation  than  the  power  of  eminent  domain,  and 
hence  subject  to  stricter  limitations.  A  public  object  maj^ 
justify  impairment  of  property  with  compensation,  when  it 
could  not  without  it,  so  the  object  of  public  pleasure  or  recrea- 
tion and  the  embellishment  of  public  grounds.  The  state  may 
require  in  the  interest  of  health  and  safety,  that  a  portion  of  a 
lot  should  not  be  built  upon,  but  not  for  the  purpose  of  widen- 
ing a  boulevard."^"  And  so  as  to  the  limitation  of  the  height 
of  buildings  to  add  to  the  beauty  of  a  public  square. ^s  In 
Massachusetts  it  was  intimated  that  such  a  limitation  might 
be  sustained  as  an  exercise  of  the  police  power,  so  that  com- 
pensation would  not  be  claimable  as  a  matter  of  right.^^  But 
when  another  act  creating  a  similar  limitation  provided  for 
payment  of  damages  for  the  deprivation  of  rights  existing 
under  the  constitution,  and  it  was  contended  on  behalf  of  the 
commonwealth  that  as  an  exercise  of  the  police  power  the 
restriction  did  not  impair  constitutional  rights,  the  court  re- 
fused to  accede  to  this  view  and  held  that  without  express 
statutory  provision  the  intent  to  deny  compensation  would 
not  be  assumed.-*"  It  would  be  correct  to  say  that  such  denial 
would  b(^  unconstitutional.'*! 

§  515.     Regulation  of  property  rights.  — Since  regulation  is 

••'<••  3H  iiiid  ;W    Vict.,  ch.  5.5,  §   308;  •'i^  St.  Louifi  v.   Hill,   IIU  AJo.  f)!'?. 

!in  application  of  tliLs  i.s  to  bo  fouiul  •"'s  Sec    Dillon    Municipal    Corpora- 

in  §§  23,  24  of  the  act;   if  there  iH  lion,  §  599,  as  to  the  exercise  of  the 

an  insiiflicieiit  ilmin.  Ilie  owner  nuist  power    (if    eminent    <iiiin;iiii     Cur    llic 

make    a    HnfTicicMl    drain    ai,    his    ex-  r'ml)ellislinient  of  cities. 
jicnse;  if  tin;  drain  is  sufiicicnt,  hut  •'"' Attorney    Tieneral    v.    Williams, 

not  adapted  to  the  general  sewerage  174  Mass.  47fi. 

system  of  the  district,  the  change  is  •"  I';irker    v.    (Jommonweallli,     I7S 

made    at    the    expense    of    tlic    lo.iil  Mass.   199,  .'59  N.   E.  634. 
authority.  "  -'^^  to  ordering  houses  to  ))e  set 


§  51()  KhXiUl.ATlOX.  .-,49 

the  normal  form  of  operation  of  the  police  power,  and  as  a  rule 
requires  no  compensation,  it  becomes  important  to  distinguish 
regulation  from  the  taking  of  property.  In  the  strictest  sense 
it  may  be  said  that  property  is  not  taken  if  it  is  left  physically 
intact  in  the  owner's  possession  with  the  right  of  enjoyment 
and  perhaps  consumption;  and  this  view  has  been  taken  of 
prohibitory  liquor  legislation  forbidding  the  sale  of  liquor  on 
hand  at  the  time  of  the  enactment  of  the  statute.-*-  But  the 
constitutional  protection  of  property  rights  cannot  in  reason 
be  satisfied  by  leaving  the  bare  possession  stripped  of  its  eco- 
nomic value,  and  a  prohibition  of  profitable  use  is  to  all  intents 
and  purposes  a  taking  of  property.  This  vieAv  is  in  accordance 
with  the  doctrine  of  the  common  law  that  the  right  to  alien 
is  so  essential  to  property  that  a  condition  annexed  to  a  grant 
of  absolute  property  against  its  alienation  is  void  as  repug- 
nant to  the  nature  of  the  right  granted.'*^  It  is  also  clear  that 
if  this  view  were  not  taken,  the  scope  of  vested  rights  would 
be  materially  narrowed,  since  limitations  which  could  not  be 
constitutionally  imposed  upon  the  holder  of  property,  might 
be  made  conditions  upon  his  right  to  sell,  so  that  every  pur- 
chaser would  take  the  property  with  the  ncAv  limitation  at- 
tached to  it. 

§  516.  Illustrations  of  regulation  not  amounting  to  taking. 
—  Regulation  then  must  mean  that  the  owner  is  required  to 
exercise  his  rights  in  conformity  with  the  demands  of  public 
welfare,  while  at  the  same  time  he  is  left  in  the  substantial 
enjoyment  of  his  property  with  its  essential  incidents.  The 
difference  between  regulation  and  taking  must  therefore  in 
many  cases  be  one  of  degree.  That  a  liquor  seller  is  forbidden 
to  sell  to  minors  or  drunkards  is  regulation  and  not  taking, 
since  a  substantial  right  of  alienation  remains.  If  aliens  are 
made  incapable  of  acquiring  lands,  owners  cannot  give  them 
an  indefeasible  title,  and  may  be  thus  deprived  of  an  oppor- 
tunity of  selling;  yet  this  is  not  a  taking.  Again,  while  an 
alien  may  be  prohibited  from  acquiring  land,  yet  if  the  title  is 
lawfully  vested  in  him  under  a  former  law  allowing  purchase, 

back  or  forward  when   the   front  is  (Del.)    612;    State  v.   Paul,   5  E.   I. 

taken  down  for  purpose  of  rebuild-  185. 

ing,   see   English   Pub.   Health   Act,  ^'f  See  Gray,  Eestraints  on  Aliena- 

§    1^5    (pompensatinn   granted).  lion,  passivi. 
42  State     V.     Allmond,     2     Houst. 


550  APPROPRIATION,    INJURY,   AND  DESTRUCTION,       §  517 

he  cannot  subsequently  be  required  to  sell  within  five  or  six 
years,  since  this  would  unduly  limit  his  right  of  alienation,  and 
no  such  requirement  will,  it  is  believed,  be  found  in  any  stat- 
ute ;  the  Illinois  Act  of  1887  allowed  aliens  holding  at  the  time 
of  its  enactment  to  sell  at  any  time  during  life."*"^  Where,  how- 
ever, the  law  may  prohibit  or  limit  the  future  acquisition  of 
property,  it  may  allow  it  also  upon  condition  only  that  it  must 
be  sold  or  disposed  of  within  a  short  time.  So  aliens  or  cor- 
porations may  be  required  to  dispose  of  lands  they  may  acquire 
under  foreclosure  of  liens,  &c.,  within  a  stated  number  of 
years."*"  The  possession  of  game  lawfully  killed  may  be  made 
unlaAvful  after  the  lapse  of  two  months  after  the  same  has  been 
killed,^*'  or  at  any  time  during  the  close  season,  the  conse- 
quence then  being  that  toward  the  end  of  the  open  season 
game  may  be  killed  onl}'  for  immediate  consumption.'*" 

That  the  law  restricts  the  exercise  of  rights  of  property  to 
uses  and  modes  of  disposition  less  profitable  than  those  pre- 
viously allowed,  does  not  amount  to  a  taking  of  property,  if 
other  profitable  methods  of  disposition  remain  lawful.  Thus 
it  is  mere  regulation  to  prohibit  retail  sales  of  liquor  to  be 
drunk  on  the  premises,  or  to  prohibit  the  distillation  of  grain 
into  liquor,  and  such  prohibition  is  therefore  constitutional 
Avithout  compensation  with  regard  to  liquor  or  grain  owned 
at  the  time  of  the  enactment  of  the  statute.'*^ 

§  517.  Cases  of  destruction  or  abrogation  of  property- 
rights.— The  absolute  destruction  or  abrogation  of  property 
rights— including  confiscatory  regulation  leaving  ho  reason- 
abk'  profit  to  the  owner— is  an  extreme  exercise  of  the  police 
power.  Where  it  is  proposed  to  exercise  such  an  authority, 
the  constitutional  right  of  private  property  must  be  weighed 
against  the  demands  of  the  public  welfare,  and  it  is  obvious 
that  a  public  interest  which  is  strong  enough  to  justify  regula- 
1inii  iiifiy  not  be  strong  enough  lo  justify  destruction  or  con- 
fiscation without  compensation.    Submission  to  regulation  may 

■»■«  §  8  <if  Act  .limi'  Ki,   1SS7,  Hince  47  Sniitli    v.    State,    155    liid.    (!11, 

repealed.      That    there   is   no    vested  58    N.    K.    1044,    51    Ti.    R.   A.    404; 

rijjht  to  transmit  by  descent  to  non-  State  v.  Rodman,  58  Minn.  393,  59 

resident     aliens     see     Donaldson     v.  N.  W.  1098. 

State   (Ind.),  (57  N.  K.  10L:9.  -ts  Stifkrod    v.    Commonwealth,    SC 

••i-'Stimson  Am.  Stat.  T>:i\v  I,  nol3,  Ky.    285,    5    S.    W.    580;    Ingrain    v. 

II,  8205.  yt.ite,  39  Ala.  247,  84  Am.  Dec.  782. 

<"•  Phelps  V.  Raci-y,  (JO  X.  Y.   K). 


§518 


CASES  OF  TAKING.  551 


be  said  to  bo  one  of  the  eonditioiis  upon  which  all  property  is 
held  iu  the  community ;  but  total  sacrifice  negatives  altogether 
the  right  of  property.  The  conditions  justifying  the  demand 
of  such  sacrifice  must  therefore  be  carefully  examined.  Thi- 
following  classes  of  cases  will  be  considered : 

those  in  which  the  property  proposed  to  be  taken  is  insig- 
nificant in  value  (§§  518-519)  ; 

those  in  which  the  property  is  imminently  dangerous,  as 
against  those  in  wdiich  it  is  unlaAvfully  used  (§§  520-528)  ; 

those  in  which  property  is  offensive  and  at  the  same  time 
useful  (§§  529-533); 

those  in  which  property  is  sacrificed  to  avoid  a  great  calam- 
ity (§§  534-537); 

those  in  which  property  is  made  unlawful  by  a  change  of 
legislative  policy ;  these  will  include : 

confiscatory  regulation  and  the  impairment  of  the  obligation 
of  contracts  (§§  538-560)  ;  the  taking  of  rights  sanctioned  by 
affirmative  act  of  the  state  (§§  561-582);  the  abrogation  of 
certain  forms  of  property  which  are  contrary  to  modern 
economic  or  social  ideas  (§§  583-603). 

INSUBSTANTIAL    INVASION  OR  DESTRUCTION.     §§  518-519. 

§  518.  Transitory  disturbance  of  possession.— There  is  au- 
thority for  holding  that  a  very  slight  interference  with  prop- 
erty rights  may  be  permitted  by  law  without  compensation. 
Justice  Holmes  speaks  of  the  power  to  exact  relatively  small 
sacrifices  from  the  individual  for  the  public  good.^  An  or- 
dinance of  Massachusetts  of  1641,  in  granting  the  right  to 
fish  in  ponds,  gave  the  right  to  pass  and  repass  on  foot  through 
any  man's  property  fo*  that  end,  so  they  trespass  not  on  any 
man's  corn  or  meadow.  In  Maine  this  ordinance  is  still  recog- 
nised as  law,2  while  in  Vermont  a  similar  enactment  of  recent 
■  date  has  been  declared  to  be  beyond  the  power  of  the  legisla- 

iBent   V.   Emery,    173   Mass.   495,  2  Barl•o^YS   v.    McDermott,    73    Me. 

53  N.  E.  910.     For  a  munber  of  il-  441.      See   also    Maine   Statutes,   ch. 

lustrations,  not  all  of  which  perhaps  4l2,    §    8,   right   of   owner   of   timber 

can  stand  the  test  of  rigid  scrutiny,  which   has   been   lodged   by   freshets 

see  Respublica  v.  Sparhawk,  1   Dall.  on    the    land    of   another   person   to 

357.     As  to  right  of  deviation  from  enter  upon  such  land  for  purpose  of 

public    highway,    see    Tiffany,    Real  removal,  tendering  damages. 
Property,  §  365. 


552  APPKOPRIATION,   INJUEY,   AND  DESTRUCTION.      §  519 

ture.3  But  in  Vermont,  the  constitution  itself  gives  the  inhabi- 
tants the  liberty  in  seasonable  times  to  hunt  and  fowl  on  the 
lands  they  hold,  and  on  other  lands  not  inclosed.-*  Provisions 
of  this  character  may,  it  seems,  be  justified  by  the  considera- 
tion that  an  owner  who  does  nothing  to  improve  or  protect  his 
lands  cannot  insist  upon  the  fullest  legal  protection  of  his  right 
of  property,  but  must  at  least  tolerate  customary  trespasses. 

Property  may,  also,  be  entered  for  the  performance  of  a 
public  duty.  It  has  been  held  in  Massachusetts  that  for  the 
purpose  of  locating  boundary  lines  entry  upon  private  lands 
may  be  justified,^  and  the  court  refers  to  the  familiar  instance 
of  selectmen  perambulating  the  lines  of  towns,  legislative  com- 
mittees exploring  the  routes  of  proposed  railroads  or  canals, 
or  county  commissioners  securing  the  location  of  a  proposed 
highway.*^  It  seems  only  reasonable  that  in  such  cases  an 
action  of  trespass  should  not  be  entertained,  and  it  may  per- 
haps be  said  that  every  owner  must  suffer  a  brief  and  momen- 
tary occupation  not  amounting  to  dispossession,  when  required 
for  pul)lic  i)urposes,  as  one  of  the  conditions  upon  which  all 
property  in  the  community  is  held.  Even  temporary  disposses- 
sion may  be  legitimate  when  necessarily  incidental  to  a  police 
regulation,  so  for  the  purpose  of  disinfecting  property  or  exter- 
minating vermin  or  weeds  or  making  sanitary  improvements.'^ 

§  519.  Property  taken  of  slight  value.— 1.  Taking  samples 
for  inspection.  — The  dairy  or  pure  food  laws  of  a  number  of 
states  require  that  the  seller  allow  the  inspecting  authorities 
to  take  samples  without  making  provision  for  compensation. 
It  has  been  ln'ld  that  this,  in  view  of  the  legitimacy  of  the 
purpose,  and  of  the  very  trifling  amount  involved,  does  not 
violate   the   spirit   of   the   constitution.^      While   the   contrary 

••I  New   Kiighuid   Trout  &c.  Club  v.  'I'liose    romuiks    do    uol    ul'    course 

Mather,  <)S  Vt.  :?.^S,  33  L.  R.  A.  5(59.  iipply    to    "temporary"    occupation 

4  Constu.   cliap.   L',   §   40,   Payne  v.  oxtendinji     over    weeks    or    months; 

Gould,  74    Vt.  Ii08,  .^'J   Atl.  421.  such     oeeui)ation     a'wos    a     eonstitu- 

r.  Winshnv  v.  fJifford,  ti  Cush.  327.  tional    ri>flit    to    compensation.      iMc- 

•1  Sec     New     Jersey     Pnli.      l^aws,  Kcou    v.    New   York,   N.   H.,   &c.,   R. 

1MH7,  ji.  lilli,  ;iH  1(1  initliorilv   of  sur-  Co.   (Conn.),  .^)3  All.  O.IO. 

veyors  to  eril(!r   lands  when   re(|uired  x  (',,iniuonwe:iIth      v.     Carter,      132 

for  puhl'K-  inii)rovements.  Mass.    12;    State    v.    l)ui)aniuier,   4fi 

7Se.-    111.    i{i'v.    St.,    titl<-    t';ni:i<la  La.  Ann.  577,  26  L.  R.  A.  162. 
ThiHtles;     Bancroft      v.     (';iiidoiil{re, 
12(;  Mass.  438. 


§  519  PROPEETY   TAKEN   OF  SLIGHT   VALUE.  553 

view  may  be  technical,  it  is  to  be  uoted  that  in  a  larger  number 
of  states'"*  the  value  of  the  sample  must  be  tendered  when  taken, 
or  compensation  made  if  the  article  is  found  unadulterated. 
As  this  practice  involves  no  serious  inconvenience  and  respects 
the  principle  of  the  constitution,  it  is  to  be  preferred. 

2.  Placing  signs  and  monuments.— There  are  perhaps  other 
cases  in  which  a  slight  though  permanent  occupation  of  private 
property  for  public  purposes  is  tolerated,  as  where  signs  with 
street  names  are  affixed  to  private  houses ;  but  even  this  inva- 
sion need  not,  it  seems,  be  tolerated  by  the  owner  without 
compensation.  Boundary  monuments  may,  it  seems,  be  placed 
on  lands  not  only  without  compensation,  but  at  the  expense  of 
the  owners,!'^  upon  the  principle  that  compulsory  powers  may 
be  exercised  over  neighboring  land  owners  for  their  joint 
benefit.^* 

3.  Right  to  dig  for  saltpetre. — In  England  the  former  royal 
prerogative  to  dig  for  saltpetre  was  attempted  to  be  reconciled 
with  the  inviolability  of  private  property  by  asserting  that  it 
did  not  take  the  subject's  inheritance,  since  the  officers  were 
required  to  dig  with  the  least  inconvenience  to  the  owner, 
were  not  allowed  to  undermine  Avails  or  dig  the  floors  of  any 
dwelling  house,  and  had  to  repair  the  place  in  as  good  a  plight 
as  it  was  before.  The  idea  was  evidently  that  if  the  preroga- 
tive was  exercised  with  sufficient  care  and  consideration,  the 
violation  of  property  rights  was  insubstantial.  Upon  the  same 
ground  of  no  value  a  proclamation  appears  to  have  proceeded 
which  required  the  preservation  of  human  and  animal  urine 
after  notice  from  the  King's  patentees,  for  the  making  of  salt- 
petre.^ 2  The  act  of  Parliament  of  1640  which  threw  open 
the  right  to  import  and  make  saltpetre  and  gunpowder,  seems 
to  have  disposed  of  this  whole  branch  of  the  prerogative.  In 
France  the  law  allows,  to  the  present  day,  the  taking  of 
material  suitable  for  saltpetre,  on  condition  of  replacement  by 
an  equal  quantity  of  other  material.^ -"^ 

'•>  Michigan,      Kentucky,      Kansas,     but  only  because  it  did  not  provide 

Iowa,     New     Jersey,     Pennsylvania,     ^or  notice  and  hearing. 

It  See  Illinois  Sorsion  Laws,  1901, 
p.  307. 

1^1627,  18  Rymer's  Foedera,  813. 
65  Minn.  310,  33  L.  R.  A.  432,  where  13  Law    March    10,    1819,    Ducrocq 

the    act    was    held    unconstitutional.      Droit  Administratif,  §  1282. 


Illinois, — also  Germany. 

10  Davis  V.  St.  Louis  Co.  Conimrs., 


554  APPEOPEIATION,    INJURY,    AND  DESTRUCTION.       jj  520 

NUISANCES.     §§  520-528. 

§  520.  Property  imminently  dangerous.— Where  the  condi- 
tion of  a  thing  is  such  that  is  is  iiuniinently  dangerous  to  the 
safet3^,  or  offensive  to  the  morals,  of  the  community,  and  is 
incapable  of  being  put  to  any  laAvful  use  by  the  owner,  it  may 
be  treated  as  a  nuisance  per  se.  Actual  physical  destruction 
is  in  such  cases  not  only  legitimate,  but  sometimes  the  only 
legitimate  course  to  be  pursued.  Rotten  or  decayed  food  or 
meat,  infected  bedding  or  clothing,  mad  dogs,  animals  affected 
with  contagious  diseases,  obscene  publications,  counterfeit 
coin,  and  imminently  dangerous  structures,  are  the  most  con- 
spicuous instances  of  nuisances  per  se.  The  power  is  chiefly 
exercised  wdiere  the  preservation  of  the  public  health  or  se- 
curity of  life  or  limb  demands  it ;  the  extreme  limit  to  which  it 
may  go  in  that  direction  was  illustrated  where  a  tenement 
house  in  a  filthy  and  unsanitary  condition  was  pulled  down  dur- 
ing the  prevalence  of  an  epidemic  disease.^ ^  But  it  may  also  be 
resorted  to  for  the  protection  of  property,  and  is  applied  to 
trees  or  animals  where  destructive  vermin  or  contagious  dis- 
eases threaten  the  ruin  to  other  property  of  llie  like  char- 
acter.''^ 

§  521.  Summary  abatement. — Since  a  nuisance  per  se  is  a 
source  of  present  and  continuing  danger,  its  destruction  does 
not  require  previous  notice  to  the  owner. 

The  rightfulness  of  the  destruction  presupposes  however 
that  the  condition  of  the  property  is  as  a  matter  of  fact  hnrin- 
ful  or  objectionable,  and  the  ex  parte  finding  of  the  authorities 
does  Jiot  determine  this  fact  conclusively  against  the  owium\ 
If  he  cannot  get  his  hearing  in  advance,  he  must  get  it  after- 
ward ;  i.  e.  he  has  a  right  to  bring  an  actu)n  for  the  destruction 
of  his  property,  and  the  authorities  who  arc  sued  nnist  justify 

1*  M<;(;kiT    v.     V;iii    Renssoliicr,    15  with  luistinoss  to  he  rebuilt  by  owii- 

Wcndoil    .'507;    hcc   also    Ferj^uson    v.  crs,  (itiiorwiso  proporfy  to  ^n  1o  tiio 

Solma,  43  Ala.  398,  case  of  a  filtliy  loid    of   tlio   manor   or    to    tin'   coni- 

arnl    wortlilcHS    hniiHo    affected     uitli  nuinity.     Ordering  a  liovi.se  to  be  va- 

tlic        smalli)ox;        Mont  {joinery        v.  catctl    is  a    coiiiiiioi'.    iiiotliod    of   ilciil 

HutchiiiHoii,    UJ    Ala.    573,    a    dilapi-  iiitl    willi     miisiiiicos    of    lliis    kind; 

ilatod    buililiti);    endaiifieriiiK    a    siilc-  rii;i|iiii    Mmiiri|i;il  S.iiiit;ilioii,  p.    l.'?H, 

walk;      AnderHoii     Onuiii     of     Com-  Kiij^.    i'liblic    llcaltli   .Act,  §  1»7. 
morco.   1535  and  1541,  acts  dirc.MiiiK  "■•Slate    v.     Main,    (i!)    Conn.     123, 

ruined   Iiouhch  in  certain  cities  filled  3(3  L.  li.  A.  623. 


s 


520  NUISANCES.  555 


their  act.'"  It"  the  property  pi-oves  to  have  been  sound  and 
harmless,  the  owner  is  entitled  to  compensation.'"  Since  officers 
thus  must  act  at  their  peril,  they  are  not  apt  to  exercise  their 
l)OAver  of  abatement,  and  this  has  been  urged  as  a  reason  why 
their  determination  should  be  held  to  be  conclusive;  but  the 
Supreme  Court  of  Massachusetts,  in  sustaining  their  liability 
practically  held  that  a  destruction  of  sound  property  without 
compensation  would  be  unconstitutional.''^ 

The  court  referred  to  the  decision  in  Train  v.  Boston  Disin- 
fecting Company,^ '^  in  which  it  had  been  held  that  all  imported 
rags  might  be  required  to  be  subjected  to  a  disinfecting  process 
at  the  expense  of  the  owner,  Avhether  in  reality  infected  or 
not.  It  was  pointed  out  that  there  the  statute  expressly 
applied  to  all  imported  rags,  Avhile  in  the  case  before  the  court 
the  authority  to  kill  was  confined  to  infected  horses,  and  some 
stress  was  laid  upon  the  trifling  values  involved  in  the  former 
case.  A  more  satisfactory  distinction  between  the  two  cases 
might  be  found  in  the  difference  between  regulation  and  taking 
of  property.  In  enacting  regulative  measures  the  law  need  not 
j-estrict  itself  to  conditions  actually  harmful,  but  may  require 
l)reeautions  within  the  whole  range  of  possible  danger;  while 
the  taking  or  destruction  of  property,  being  an  extreme  meas- 
ure, is  justified  only  within  the  narrowest  limits  of  actual 
necessity, — unless  indeed  the  state  chooses  to  pay  compen- 
sation.20 

i«' Savannah   v.   Mulligan,   9-5  Ga.  plaintiff  was  not   allowed  to  prove 

323,  29- L.  R.  A.  303;  People  ex  rel.  that   the  property   had   not  in  fact 

Copcutt   V.   Yonkers,    140    X.    Y.    1,  been    a    nuisance,    the   board's    ad- 

23  L.  R.  A.  481;  Newark  &e.  R.  Co.  judication    being    held    conclusive. 

V.  Hunt,  .50  N.  J.  L.  308.  Put    the    plaintiff    had    previously 

IT  Miller    v.    norton,    152    ^lass.  ^'I'Peared    before    the    board    with 

540;  Pearson  v.  Zehr,  138  111.  48.  reference    to    the    condition   of   his 

r,ropertv,    and    it    was    considered 

IS  Miller  V.  Horton,  supra.  ',!,',      ,  ,     i       ,    ^      .■  ■,       +•.,„ 

that  he  had  had  substantial  notice. 

19  144  Mass.  523.  and  that  he  could  not  set  up  tech- 
-oln  Van  Wormer  v.  Mayor  &c.  nical  irregularities  except  on  cer- 
of  Albany,  15  Wend.  262  (1836),  tiorari.  As  to  non-.-onchisiveness 
the  board  of  health,  in  time  of  a  of  ex  parte  condeuiuitions  of  prop- 
cholera  epidemic,  had,  without  erty,  see  also  Salem  v.  Eastern  R. 
formal  notice  to  the  plaintiff,  ad-  Co.,  98  Mass.  431;  Shipman  v. 
judged  ])roperty  owned  by  him  to  State  Live  Stock  Comm'rs,  115 
be  a  nuisance,  and  it  was  there-  Mich.  488;  Lowe  v.  Conroy  (Wis.), 
upon  destroyed  by  order  of  the  97  X.  W.  942;  Waye  v.  Thompson, 
defendants.       Suing     for     trespass,  L.  R.  15  Q.  B.  D.  342. 


556  APPEOPEIATION,   INJUKY,   AND  DESTRUCTION.      §  522 

§  522.  Carcasses,  garbage,  &c.— As  long  as  property  is  not 
imminently  dangerous  or  offensive  it  cannot  be  treated  as  a 
nuisance  per  se.  Thus  an  ordinance  cannot  authorise  the 
destruction  of  property  left  on  a  levee  because  it  encumbers 
the  same,  where  every  legitimate  purpose  would  be  accom- 
plished by  its  removal.-^  This  principle  is  well  illustrated  by 
the  law  regarding  the  disposal  of  carcasses  of  dead  animals. 
They  are  liable  to  become  nuisances,  and  if  not  cared  for  may 
be  treated  as  such;  but  the  owner  of  an  animal  does  not  lose 
his  property  in  it  as  soon  as  it  dies;  he  must  be  given  an 
opportunity  to  dispose  of  it  since  he  may  realise  something 
from  its  sale;  and  to  give  offal  contractors  immediately  an 
exclusive  control  of  all  dead  animals,  or  even  to  require  their 
deposit  at  a  designated  place  is  taking  property  without  due 
process  of  law.22  Under  the  statute  of  Louisiana  which  was 
upheld  in  the  Slaughter-house  Cases,  the  slaughter-house  com- 
pany was  allowed  to  take  the  entrails,  etc.,  of  all  animals 
slaughtered ;  this  provision  Avas  not  passed  upon  by  the  Su- 
preme Court,  but  seems  clearly  unconstitutional.  So  it  has 
been  intimated  that  an  exclusive  privilege  to  collect  and  con- 
vey garbage  cannot  be  made  to  apply  to  such  refuse  matter 
as  the  owner  may  desire  to  use  or  sell,  and  which  is  innocuous 
and  capable  of  being  put  to  useful  purposes.23  Under  a  stat- 
ute of  tlie  United  States,^^  sunken  water  craft  are  not  treated 
as  derelict  or  abandoned  until  the  owner  has  been  given  an  op- 
])ortunity  to  remove  the  same. 

ij  523.  Abandoned  animals.— In  a  number  of  states,  fol- 
lowing a  statute  of  ^Massachusetts  of  1881,2^  legislation  has 
been  enacted  to  the  effect  thnt  where  an  animal  is  found 
abandoned  <)••  neglected,  which  ai)pears  to  hr  diseased  or 
disabled  Ijeyoiid  i-ecovery  For  any  useful  purpose,  sueli  aui- 
iii;il  if  IoiukI  1o  be  woi'tli  110I  to  exceed  live  (|olI;irs  may 
lie   l<ille(|    hy   iigi'iits  of  s(»('ieti<'s   I'or  the  prevention   of  cnielty 

-.11  l>i.nr.':ir    v.     Mi.ynr,    4    Lit.    <I7,  Ky.    1.    K'cp-    ' !>^.  '^l    T..    U.    A.   'JID; 

],tj32,  C;iiii|)l)('ll  \.   nistrict   of  ( "nlimilii;i,   1!) 

•J^  Undorwooil    v.    Crcen,    42    Now  App.  \).  i'.  1.31. 
York     140;     River    Rondorinc    Corn-  -■>  Sliito  v.   Orr,   (JS   ("oini.    101,   :U 

pai.y   V.    Ficlir,   77   Mo.   01;    State   v.  I,.  U.  A.  279. 

Morris.    17    \.:\.    Ann.    UKiO;    ScIkxmi  -' Act  June  14,  ISSd,  I  Sujipl.  296. 

r,roH.  V.  Atliinta,  97  Ca.  (597.  .3.T  T..  -f.  Rev.  Laws,  vh.  9;!,  S   1.3. 

H.   A.  H04;    KiiainT  v.  LouiHvillc,  20 


§  524  INFECTED   CATTLE.  557 

to  animals;  the  society  then  to  be  indebted  to  the  owner 
for  the  value  of  the  animal,  unless  the  killin«^  was  ren- 
dered necessary  by  the  owner's  cruelty.  Acts  of  this  character 
have  been  held  unconstitutional  because  failing  to  provide 
for  notice  to  the  OAvner,-"  it  being  assumed  that  there  is  no 
such  urgent  necessity  for  killing  the  aniuial  that  there  would 
be  no  time  for  some  kind  of  a  proceeding  in  Avhich  the  owner 
can  be  heard.  If  it  is  foiuid  upon  such  a  proceeding  that 
the  dictates  of  humanity  require  the  killing  of  the  animal, 
there  would  seem  to  be  no  reason  why  the  owner  should  be 
compensated. 

§  524.  Infected  cattle.— Most  states  have  enacted  legisla- 
tion, imder  which  cattle  infected  with  or  exposed  to  contagious 
disease  may  be  killed  by  designated  authorities.  In  nearly  all 
these  states  some  compensation  is  made  for  the  animals  so 
slaughtered.  Only  one  state  (Minnesota)  expressly  restricts 
compensation  to  cases  where  the  animal  is  found  entirely  free 
from  disease ;  in  most  cases  the  appraised  value  is  paid,  some- 
times with  a  statutory  maximum  limit,  and  in  a  number  of 
states  one-half  or  three-fourths  of  the  value  is  paid  if  the 
animal  is  found  to  be  affected.  The  purpose  is  probably  to 
allow  the  slaughter  of  animals  as  a  measure  of  precaution 
where  their  condition  is  not  so  imminently  dangerous  as  to 
deprive  them  of  all  value  or  constitute  them  a  nuisance  per  se. 
The  same  principle  of  compensation  is  recognised  in  France,^^ 
and  Germany .28 

§  525.  Property  unlawfully  used,  and  forfeiture. — The  power 
of  summary  abatement  does  not  extend  to  property  in  itself 
harmless  and  which  may  be  law^fully  used,  but  which  is  actually 
put  to  unlawful  use  or  is  otherwise  kept  in  a  condition  con- 
trary to  law.  So  if  a  certain  kind  of  transportation  is  a  nui- 
sance this  does  not  justify  the  tearing  up  of  railroad  tracks.^'-' 
A  house  of  ill-fame  may  not  be  torn  down  summarily;-"'  a 
building  where  liquor  is  kept  unlawfully  for  sale  may  not  be 

26  Loesch  V.  Koehler,  144  Ind.  278,  29  Chicago   v.   Union   Stock   Yards 
35  L.  E.  A.  682;  King  v.  Hayes,  80     Co.,  164  111.  224. 

Me.  206;   Carter  v.   Colby,   71  N.  TT.          ^  Wpig])      y,      Stowell,      2      Doug. 

230,  51  Atl.  904.  (Mich.)    332;    Ely  v.  Supervisors  of 

27  Law  of  July  21,  1881.  Niagara  County,  36  N,  Y.  297. 

28  Law  of  June  23,  1880. 


558  APPEOPKIATIOX,    INJURY,   AND  DESTRUCTION.       §  526 

destroyed,2i   and  a  canal  may  not  be  destroyed  because  not 
kept  in  a  clean  condition. s- 

The  unlawful  use  may,  however,  be  punished,  and  the  pun- 
ishment may  include  a  forfeiture  of  the  property  used  to  com- 
mit the  unlawful  act.  While  in  many  eases  this  Avould  be  an 
extreme  measure,  it  is  subject  to  no  express  constitutional 
restraint  except  where  the  constitution  provides  that  every 
penalty  must  be  proportionate  to  the  offense.  The  forfeiture 
of  a  vessel  engaged  in  unlawful  oyster  fishing  has  been  up- 
held by  the  Supreme  Court  of  the  United  States."^  The  federal 
anti-trust  act  of  1890  goes  so  far  as  to  provide  that  any  prop- 
erty owned  under  any  contract  or  by  any  combination,  or 
pursuant  to  any  conspiracy  (and  being  the  subject  thereof), 
mentioned  in  Section  1  of  the  act,  and  being  in  the  course  of 
transportation  from  one  state  to  another  or  to  a  foreign  coun- 
try, shall  be  forfeited  to  the  United  States. 

§  526.  Judicial  safeguards.— Such  forfeiture  is  not  an  exer- 
cise of  the  police  power,  but  of  the  judicial  power,  i.  e.  the 
taking  of  the  property  does  not  directly  subserve  the  public 
welfare,  but  is  intended  as  punishment  for  an  unlawful  act. 
Hence  forfeiture  requires  judicial  proceedings,  either  personal 
notice  to  the  owner,  or  at  least  a  proceeding  in  rem  with  notice 
by  publication. 34 

There  is  perhaps  in  some  cases  some  confusion  between  the 
police  power  and  the  judicial  power  owing  to  the  fact  that 
property  unlawfully  used  may  tend  to  assume  the  character 
of  a  nuisance  per  se.  Animals  running  at  large  are  not  infre- 
quently impounded  and  sold  upon  notice  to  the  owner ;  but  dogs 
may,  if  kept  in  an  unlawful  innnncM',  be  destroyed  summarily, 
because  they  are  at  best  fiualilied  ))r<)perty.='^'^  As  long  as 
intoxicating  licpior  may  be  used  as  medicine,  or  as  a  lawful 
article  of  export,  it  is  not  a  nuisance  pel'  se,  and  cannot  be 
summarily    destroyed. =''*^      And    while    the    law    may    provide 

:n  lOiirj)  V.  Lcc,  71   III.  193.  •>«  Smith  v.  Mnryliiml,  IS  lion.  71. 

•■laHubcock    v.    Buffalo,    56    N.    Y.  fiCoffry  v.  Uinhnl  Statos,  IK!   U. 

L'nS;  HO  as  to  n  livory  Btahle,  Miller  S.  427;  Uiiitod  States  v.  Zuckcr,  161 

V.    I'.iircli,    :!2    Texas    20.S;    wlicri'   an  U.  S.  47.'). 

engine    is    a     iiuiKaiice    only    on    act-  •'"'' C'ampaii    v.    T>aii^l('y,    'M    Mich, 

count    of    its     location,     the    proper  4.'")1  ;  Sontell   v.   Now   Orl(>an.s  &c.   R. 

rcninfly  in  iln  removal,  Bri^lilnian  v.  Iv'    Co.,  166  U.  S.  698;  P.lair  v.  I'orc- 

UriMlol,    6r.    Me.    426,    20    Am.    Ur\>.  hand,  100  Mass.  1.36. 

711.  •"'••  Brown  v.  Perkins,  12  Gray  89. 


§  527  PROPERTY    UNLAWFULLY    USED.  559 

for  its  seizure  and  forfeiture  where  it  is  l<:ept  unlawfully,  it 
may  do  so  only  under  proper  safeguards,  and  the  constitu- 
tional guaranties  against  unreasonable  searches  and  seizures 
have  in  some  cases  been  insisted  upon  with  great  strictness.-*'^ 

In  Connecticut  it  has,  however,  been  held  that  where  liquor 
is  kept  for  sale  contrary  to  law,  its  value  for  consumption  or 
export  will  not  be  considered  as  that  would  tend  to  nullify  the 
statute.-*'^  It  has  also  been  held  that  implements  and  appara- 
tus used  for  gambling,  but  which  may  be  used  for  different 
objects,  (as  for  instance  a  gaming  table),  or  which  may  serve 
the  purpose  of  innocent  and  harmless  amusement,  cannot  be 
(.lestroyed  without  notice  to  the  owner.**'>> 

Where  liquor  can  serve  no  lawful  use  it  may  be  destroyed 
summarily .4"  Where  as  a  matter  of  notoriety  certain  arrange- 
ments in  liquor  saloons  are  used  for  illegal  and  immoral  pur- 
I)Oses,  their  removal  may  be  directed,  and  unless  so  removed 
they  may  be  treated  as  nuisances.  The  order  of  removal 
should  be  regarded  as  a  regulation  and  not  as  the  taking  of 
property;  it  is,  therefore,  valid,  though  applied  to  existing  ar- 
rangements, which,  having  been  declared  illegal,  can  serve 
no  further  lawful  purpose."*^ 

§  527.  Lawton  v.  Steele.— The  principlen  which  should  gov- 
ern the  forfeiture  of  property  were  departed  from  in  the  de- 
cisions of  the  New  York  Court  of  Appeals  and  -the  United 
States  Supreme  Court  in  the  case  of  Lawton  v.  Steele,"*  2  up- 
holding a  New  York  statute  authorising  the  summary  seizure 
and  destruction  of  nets  used  for  unlawful  fishing,  without  any 
judicial  process.  The  chief  argument  relied  on  was  the 
trifling  value  of  the  property  taken  (nets  worth  $15.00  a  piece), 

37  Fisher  v.  McGirr,  1  Gray  1  ;  clearly  intended  for  unlaw  ful  use  ex- 
Hibbard  v.  People,  4  Mich.  125;  clusively;  Glennon  v.  Britton,  155 
Sullivan  v.  Oneida,  61  111.  242,  where  111.  232,  40  N.  E.  594;  Frost  v.  Fec- 
it is  pointed  out  that  the  direction  pie,  193  111.  635,  61  N.  E.  1054; 
to  sell  the  liquor  recognises  it  as  Board  of  Police  Commissioners  v. 
property  and  is  inconsistent  with  its  Wagner,  93  Md.  182,  48  Atl.  455 
treatment  as  a  nuisance  per  se.  (slot  macliines).  See  also  Garland 
Darst  V.  People,  51  111.  286;  for  a  Novelty  Co.  v.  State  (Ark.),  71  S. 
less  strict  view  see  tiincoln  v.  Smith,  W.  257. 

27  Vt.  328.  *o  United  States  Rev.  Stat.   2140, 

38  Oviatt  v.  Pond,  29  Conn.  479.  2141,  liquor  in  the  Indian  country. 

39  Lowry  v.  Rainwater,  70  Mo.  *!  State  v.  Barge,  82  Minn.  256.  5H 
152;  State  v.  Robbins,  124  Ind.  308,  L.  R.  A.  428,  84  N.  W.  911. 

8  L.  R.  A.  438;  otherwise  as  to  those         -12 119  N.  Y.  226,  152  U.  S.  133. 


5«0  APPEOPEIATIOX,    INJURY,    AND  DESTEUCTIOX.       $^  528 

and  the  disproportiouate  cost  of  condemnation  proceedings, — 
an  inadmissible  argument  where  constitutional  rights  are 
involved.  The  dissenting  opinion  of  Chief  Justice  Fuller,  in 
which  Justices  Field  and  Brewer  concurred,  will  appeal  to 
many  minds  as  embodying  the  sounder  doctrine.  In  accord- 
ance with  the  view  of  the  dissenting  justices  a  statute  of  Ohio 
allowing  the  confiscation  of  nets  used  in  illegal  fishing  without 
legal  proceedings  was  held  unconstitutional.^^ 

In  a  subsequent  case  the  Court  of  Appeals  of  New  York 
held  that  a  statute  making  it  a  misdemeanor  to  disturb  oyster 
beds,  and  providing  for  the  forfeiture  of  any  vessel  used  in 
violating  the  act,  by  proceedings  before  a  justice  of  the  peace, 
was  unconstitutional  as  violating  the  guaranty  of  jury  trial, 
as  being  oppressive,  and  constituting  an  unauthorised  confisca- 
tion of  property  for  the  protection  of  merely  private  rights.-*^ 
This  decision  certainly  goes  far  toward  weakening  the  author- 
ity of  Lawton  v.  Steele.  Dogs  used  for  unlawful  hunting  may 
be  killed,  since  property  in  dogs  is  of  a  qualified  nature.^^' 

^  528.  Property  created  or  acquired  in  violation  of  law.^" 
—Where  the  law  prohil)its  the  creation  or  acquisition  of  cer- 
tain property,  and  thereafter  in  manifest  contravention  to  it 
such  property  is  created  or  acquired,  it  is  perhaps  not  strictly 
speaking  a  nuisance  per  se,  since  it  is  not  imminently  danger- 
ous, but  it  is  evidently  less  entitled  to  consideration  than  prop- 
erty which  is  merely  unlawfully  used,  since  the  status  of  the 
whole  property  is  illegal  ah  initio.  It  has  thus  been  held  that 
a  frame  building  erected  in  violation  of  law  may  be  torn  down 
summarily,  preserving  the  material  to  the  owner.-*"  But  it 
has  been  said  in  Pennsylvania  that  a  wooden  house  under 
such  circumstances  is  not  n  nuisance  per  se.-^^ 

43  Edson    V.    Cranpjle,    62    Oh.    St.  saved,  Weller  v.  Snover,  42  N.  J.  E. 

49,   5G   N.  E.   647.     So  also   leek  v,  341. 

Anderson,  .'57  C'al.  2.')1,  40  Am.  Rep.  ■»•»  Colon   v.   Lisk,    l.')3   N.   Y.   188, 

115.     A  preliminary  seizure  is  valiil,  47  N.  E.  302. 

Haney  V.  Compton,  36  N.  J.  L.  507.  -Jr.  New    York    Forest    Game    ;iiid 

Where    a    net    is    adapted    only    for  Fish  Law,  §  8. 

unlawful     fisliing     it     may     be     de-  •"<  See  also  §§  565,  176-179. 

Htroyed,    State    v.    Lewis,    134    hid.  ^'  i-:i(dicnlaub    v.    St.    .Joseph,    113 

230,  20  L.  R.  A.  52,  but  in  that  case  Mo.  395,  18  L.  R.  A.  590;   King  v. 

m'Tcly  a   fine   was   imposed.     A   fish  Davenport,  98  111.  305;  lline  v.  New 

basket    constructed    in    violation    of  FTaven,  40  Conn.  478. 

law  may  also  be   destroyed,   quaere  ■>«  Fields    v.    Stokley,    9!)    I'li.    St. 

whether   the   materials   must   not   bo  306. 


§529  USEFUL    BUT    OFFENSIVE   I NDUSTIUES.  oOl 

Game  unlawfully  killed  may  be  destroyed  summarily,  since 
no  property  in  it  can  be  aeciuired  while  the  law  prohibits  its 
taking-.  In  this  case  there  is  no  forfeiture  since  there  is  no 
property  right.  Statutes  however  provide  for  judicial  pro- 
ceedings for  confiscation  and  sale  where  game  is  possessed  un- 
lawfully.''^ 

It  may  perhaps  be  said  that  wherever  the  forfeited  property 
is  sold,  judicial  proceedings  are  required,  for  it  is  then  clear 
that  it  is  not  treated  as  a  nuisance  per  se.^^  The  only  proper 
method  of  dealing  with  a  nuisance  per  se  is  to  destroy  it. 

USEFUL   BUT   OFFENSIVE  INDUSTRIES.     §§  529-533. 

§  529.  Status  of  noxious  establishments.— An  industrial 
establishment  which  is  offensive  to  the  senses  and  the  operation 
of  which  is  attended  with  noxious  effluvia  is  not  a  nuisance  per 
se.  not  at  least  if  it  is  located  in  an  appropriate  place. ^  But 
it  may  become  so  when  the  character  of  the  neighborhood 
changes,  and  .it  is  in  that  case  no  defence  either  that  it  is  con- 
ducted with  great  care,^  or  that  the  complaining  public  "has 
come  to  the  nuisance.  "^  The  theory  is  that  no  one  can  by 
prior  occupancy  establish  for  himself  a  right  to  annoy  or 
incommode  the  public,  or,  as  it  has  been  put,  that  "the  right 
of  habitancy  is  superior  to  the  exigencies  of  trade."'* 

§  530.  Exercise  of  municipal  power.— IMunicipal  corpora- 
tions are  frequently  given  power  to  prohibit  and  suppress 
noxious  establishments  within  their  limits.  This  power  has 
been  allowed  to  be  exercised  with  regard  to  existing  establish- 
ments,^  and  it  may  cover  the  whole  city.*^  It  is  obvious  that 
property  of  great  value  may  thus  have  a  very  insecure  legal 
status,  but  practically  the  power  of  the  courts  is  sufficient  to 
prevent  an  abuse  of  municipal  authority.  It  is  well  estab- 
lished that  municipal  ordinances  must  not  be  oppressive,  and 
it  would  be  difficult  to  find  a  more  striking  illustration  of  op- 

49  Illinois    Game    Law,    April    24,  State    v.    Board    of    Health    of    St. 

1899,  §§  21,  22.  Louis,  16  Mo.  App.  8. 

so  Sullivan  v.  Oneida,  61  111.  242.  *  Greenleaf  on  Evidence  II,  §  473. 

1  16  Cyclop.  Law  1st  Ed.  pp.  937,  ■''.Mass.  Rev.  Laws  ch.  75;   Cronin 
P38.  V.   People,   82   N.   Y.   318;    New   Or- 

2  State  V.  Wilson,  43  N.  H.  415.  leans  v.  Faber,  105  La.  208,  53  L.  R. 

3  Commonwealth  v.  Upton,  6  Gray  A.  165. 

473;   People  v.  Detroit  White  Lead  « Beiling    v.    Evansville,    144    Ind. 

Works,   82   Mich.   471;    Ashbrook   v.      644;  ex  parte  Heilbrou,  65  Cal.  609. 
Commonuealth,    1    Bush    Ky,    139; 

36 


5G-2  APPEOPKIATION,   INJURY,   AND  DESTRUCTION.      :^  531 

pressiveness  than  the  attempted  suppression  of  a  great  indus- 
trial establishment  or  other  useful  undertaking,  ilie  prohibi- 
tion of  cemeteries  in  a  sparsely  settled  district  has  been  de- 
clared invalid  in  Illinois,"^  the  retroactive  prohibition  of  render- 
ies  in  New  Yorli.^ 

§  531.     Judicial    safeguards.— The    question    whether    nui- 
sance or  not  cannot  be  concluded  by  the  passage  of  an  ordi- 
nance, still  less  by  an  administrative  order,  although  the  ver- 
dict of  a  jury  on  an  appeal  from  the  order  of  a  board  of 
health  may  be  final.''     The  degree  of  discomfort  required  for 
a  conviction,  and  still  more  for  an  abatement,  will  be  measured 
by  all  the  surrounding  circumstances  so  that  an  establishment 
which  would  be  a  nuisance  in  a  residence  district,  will  not  be  so 
regarded  in  a  neighborhood  devoted  to  business  and  factories, 
in  which  life  has  adjusted  itself  to  the  inevitable  annoyances 
of  manufacturing  industry.     In  Commonwealth  v.  Miller,^ "  a 
conviction  was  reversed  because  the  jury  had  not  been  allowed 
to  receive  evidence  as  to  the  location  of  the  business,  the  length 
of  time  for  which  it  had  been  carried  on,  its  importance  to  the 
community,  and  the  amount  of  capital  invested;  all  of  which, 
it   was  held,   should   have   been  taken   into   consideration   in 
determining  the  question  of  nuisance.     In  People  v.  Detroit 
White  Lead  Works^^   it  was  intimated  that  the  proof  upon 
which  the  judgment  imposing  the  fine  was  based  would  not  be 
considered  as  binding  in  a  proceeding  for  abating  the  business, 
in  which  weight  would  be  given  to  all  equities  in  favor  of  the 
establishment. 

§  532.  Status  of  offensive  industries  under  foreign  laws. 
—  With  all  these  judicial  safeguards,  however,  it  would  seem 
that  the  law  itself  should  recognise  some  limitation  of  th(^ 
power  over  offensive  establishments.  Such  limitations  a  it 
found  to  a  greater  extent  in  foreign  than  in  American  laws. 

In  England,  under  the  Public  Health  Act,'^  the  defendant  in 
ease  of  a  trade  nuisance  may  show  that  he  has  used  the  best 
practicable  means  for  abating  the  nuisance  or  i)r('venting  or 
counteracting  effluvia. 

7  Lake    Vii'w    v.    K'usc    Hill    < 'onio-  "  Tiiiiiiton     v.     Taylor.     11(5     Mass. 

tory,  70   Fll.    HH.  L'.')4. 

«  Now    York    Hanitary    Utilisation  i"  1.30  Pa.  St.  77. 

rritiipany    v.     Dcparlinont.    r.f    IMihlic  "  SL'  Midi.  471. 

Health.  70  \.  Y.  Snpiil.  .^)1(),  (>1   .'\i.|>.  ''^  IJS  and  39  Vict.  eh.  55,  §  114. 
Div.   KKi. 


§533 


OFFENSIVE   INDUSTRIES.  jOiJ 


The  French  law  concern iiifi'  (hin<2:eroiis  and  offensive  estab- 
lishments (decree  of  October  15,  1810),  provicU's  that  it  shall 
iiave  no  retroactive  effect;  hence  establishments  existing  at 
the  time  of  its  enactment  were  allowed  to  continue  in  op- 
eration, subject  to  liability  for  damages  to  adjoining  pro- 
prietors. An  exception  is  admitted  with  regard  to  establish- 
ments which,  under  the  decree,  must  in  the  futiu'e  be  located 
away  from  residences;  if  these  are  gravely  prejudicial  to  pub- 
lie  health  or  other  public  interests,  they  may  be  suppressed ; 
other  establishments  cannot  be  suppressed  without  paying 
compensation.^  •" 

Under  the  German  law  provision  is  likewise  made  for  com- 
pensation, where  the  continued  operation  of  an  establishment 
is  prohibited,'^  and  no  distinction  is  made  between  unsanitary 
and  merely  offensive  trades. 

§  533.  Massachusetts  law.— In  Massachusetts  on  the  other 
hand  assignments  of  places  for  the  exercise  of  offensive 
trades  are  subject  to  revocation,  and  Avhile  the  consent  of 
mayor  and  aldermen  is  required  for  the  establishment  of  oft'en- 
sive  and  noxious  occupations,  yet  the  state  board  of  health 
may  forbid  their  being  further  carried  on  if  public  health  or 
public  comfort  and  convenience  so  require.  The  order  of  a 
town  board  of  health  forbidding  an  offensive  trade  within  the 
limits  of  a  town  is  subject  to  appeal  to  the  superior  court  for 
a  jury.'^' 

DESTRUCTION    TO    AVOID  CALAMITY.      §§534-537. 

§  534.    Destruction  of  property  to  check  the  spread  of  fire.— 

It  is  common  to  cite  as  an  illustration  of  the  right  to  take  prop- 
erty under  the  police  power,  that  in  case  of  a  conflagration  a 
building  may  be  demolished,  if  necessary  to  stop  the  course  of 
the  fire,  without  any  obligation  to  compensate  the  owner.  If  it 
is  true  that  during  the  great  fire  in  London  the  mayor  of  the 
city  refused  to  order  the  destruction  of  buildings  for  fear 
that  he  might  be  held  liable  in  damages,'"  the  principle  cannot 
have  been  firmly  settled  in  the  seventeenth  century  -.  but  the 

IS  Block,    Dictionnaire,    Etablisse-  i^  Rev.  Laws,  cli.  75,  §§  91,  92,  95, 

ments  dangereux  18,  30.  99,  100,  108,  109. 

14  Trade  Code,  §§  51,  52.  i"  See  Respublica  v.  Sparbawk,   1 

Dall.  357. 


564  APPROPRIATIOX,   INJURY,  AND  DESTRUCTION.       §  534 

older  authorities  use  it  to  illustrate  the  law  of  necessity  and 
the  overriding  claims  of  the  public  welfare;^'  and  at  the  pres- 
ent day  courts  and  writers  treat  it  as  established  beyond  ques- . 
tion. 

The  •  decisions  denying  the  right  to  compensation  may  be 
divided  into  two  classes,  those  in  which  the  action  was  brought 
against  the  municipality,  and  those  in  which  it  was  brought 
against  the  person  who  ordered  the  destruction. 

Decisions  of  the  former  class  throw  no  light  vipon  the  prob- 
lem; for  even  if  the  destruction  were  illegal  or  unconstitu- 
tional, the  political  community,  whether  city  or  state,  Avould, 
on  general  principles,  not  be  liable  for  the  unauthorized  exer- 
cise of  governmental  powers  by  its  officers  or  agents.^'^  If 
a  statutory  remedy  is  created  against  the  city,  it  must  be 
strictly  pursued,  and  must  fail  in  cases  not  covered  by  the 
terms  of  the  law.^^ 

On  the  other  hand,  the  decisions  denying  relief  against  the 
persoJi  or  officer  ordering  the  destruction  of  the  property,  are 
based  on  the  theory  that  overriding  and  urgent  necessity 
justifies  the  act  of  destruction.^'^  The  Roman  law  takes  the 
same  view.-^  The  decisions  make  it  clear  that  only  the  strict- 
est necessity  will  excuse  the  officer.  They  do  not  hold  that 
there  is  an  exercise  of  lawful  governmental  authority ;  neces- 
sity simply  operates  to  relieve  from  liability  for  an  act  other- 
wise tortious.  In  justice,  the  duty  of  compensation  should  fall 
upon  the  community,  but  such  a  duty  can  be  called  into 
existence  by  legislation  only.  It  is  not  surprising  that  the 
ordinary  principles  of  the  common  law  should  not  afford 
an  adefiuate  remedy  in  cases  of  sudden  nnd  extraordinary 
emergency;  but  a  defect  of  the  connnon  law  is  not  neces- 
sarily a  principle  of  constitutional  government.     Where  prop- 

"  Case 'of    Prerogative,    12    Rep.  Coflin    v.    Nantucket,    ft    (Uish.    269; 

12;  Mouse's  Case,  12  Rep.  63.  Keller    v.    Corinis    Christi,    50    Tox. 

iHField  V.  Des  Moinos,  39  To.  575;  614;    Russell    v.    New    York,    2    Den. 

McOonald  v.  City  of  Red  Winp,  13  461;  Itufjjrles  v.  Nantucket,  II  Cusli. 

Minn.  38;  White  v.  City  Council  of  43.3. 

Ch.irleHton,  2  Hill  (S.  C.)  571  ;  Tay-  ^"  Anier.  Print  Works  v.  T.nwrence, 

lor   V.   Plymouth,   8   Mete.   462;    Dil-  3  Zabr.   (N.  .T.  L.)  590,  57  Am.  Dec. 

hm,  §  957.  ^20;    Surocco   v.   Ceary,    3   Cal.   69; 

i»Bow<litch    V.   Boston,    101    U.   R.  Pollock,  Torts,  IV,  11. 
16;    Mayor  v.   Uor-l,    17   W.mhI.   285;  'Jt  Dig.  43,  24:   7,  4  ;  47,  9:  3,  7. 

Sfonc    V.     Mayor,     25     Wend.     157; 


S  535  DESTKUCTiON     TO    AVUlD  CALAMITV,  505 

erty  is  destroyed  in  order  to  save  other  property  of  greater 
value,  a  provision  for  indemnity  is  a  plain  dictate  of  jus- 
tice and  of  the  principle  of  equality.  It  may  be  doubted 
whether  the  legislature  has  power  to  positively  authorise  and 
regulate  such  destruction  Avithout  making  provision  for  com- 
pensation. 

§  535.     Statutory  compensation.— As  a  matter  of  fact,  legis- 
latures do  not  assume  such  power.     Statutory  regulation  of 
the  power  is  always  accompanied  by  statutory  duty  of  com- 
pensation.    As  early  as  1692,  provision  was  made  in  Massa- 
chusetts for  indemnifying  owners  whose  property  should  be 
destroyed,    if  the   destruction   was   the   occasion   of  stopping 
the  fire,  or  if  the  fire  stopped  before  coming  to  the  property. 2- 
Similar  statutes  have  been  passed  In  &<c.ay  other  states.^^     The 
principles   of   the   police    power   are   very   much    more   truly 
expressed  in  this  statutory  legislation  than  in  the  .so-called  law 
of  necessity.     Of  course  there  can  be  no  constitutional  or  moral 
duty   of  compensation,  where   the  property   destroyed   could 
not  have  been  saved  in  any  event.     The  just  rule  of  law  in 
this  matter  has  been  formulated  by  the  Code  of  Georgia  as 
follows:      "Analogous   to   the   right   eminent   domain,   is   the 
power  from  necessity  vested  in  corporate  authorities  of  cities 
and  towns  and  counties  to  interfere  with  and  sometimes  to 
destroy  the   private  property  of  the  citizens  for  the  public 
good,  such  as  the  destruction  of  houses  to  prevent  the  spread 
of  a  conflagration,  or  the  taking  possession  of  buildings  to  pre- 
vent the  spread  of  contagious  disease.     In  all  such  cases  any 
damages  accruing  to  the  owner  from  such  acts,  and  which 
would  not  otherwise  have  been  sustained,  must  be  paid  by 
such  corporation.  "24 

§  536.  Destruction  for  military  purposes.— The  assertion  of 
the  power  to  destroy,  without  compensation,  property  under 
the  stress  of  great  and  over,  ^^irrj  necessity,  finds  some  support 
in  the  analogy  of  the  military  power.  The  example  of  justifi- 
able destruction  usually  cited,  the  raising  of  bulwarks  on  pri- 
vate land,  clearly  falls  under  that  categor3\  ^Military  necessity 
has  produced  from  times  immemorial  and  still  produces,  con- 

22  Massachusetts   Provincial   Laws     ginia,     Georgia,     Louisiana,     Texas, 
1692-3,   eh.    13;    Eev.   Laws,   ch.    32,      find  Indiana. 

§§  11,  13.  •-•*  Code  §  2200. 

23  So    in    Maine,    New   York,    Vir- 


566  APPEOrElATIOX,   INJUKY,   AND  DESTRUCTION.       §  5;j7 

stitiitional  anomalies.  Of  earlier  English  practices,  now 
fallen  into  disuse,  may  be  mentioned  the  right  to  impress 
seamen  for  the  uavy,^^  the  arresting  of  ships  to  be  used  as 
transports  in  time  of  war,-^  and  the  prerogative  of  digging 
for  saltpetre.-'  Even  now  it  is  recognised  that  if  for  the  pur- 
pose of  weakening  the  enemj^  checking  his  movements  or 
resisting  his  advance,  provisions  and  other  supplies,  houses, 
bridges  or  other  material,  are  destroyed,  the  owners  though 
loyal  are  not  entitled  to  compensation.^^  Perhaps  the  consid- 
eration that  there  can  be  no  compensation  for  loss  of  lives 
sacrificed  by  war,  and  that  property  can  claim  no  greater  pro- 
tection than  life,  may  explain  and  justifj^  the  principle,  which, 
however,  is  too  anomaloiTs  to  be  readily  extended  to  civil 
affairs.  Even  in  time  of  war,  however,  compensation  is 
granted  for  property  actually  appropriated :  supplies,  war 
material,  or  means  of  transportation. ^^ 

§  537.  Where  not  ordered  by  responsible  military  authority. 
— It  is  questionable  whether  the  immunity  from  liability  for 
destruction  of  property  due  to  the  necessities  of  war  extends 
to  acts  of  destruction  not  ordered  by  responsible  military 
authority.  In  several  cases  during  the  Civil  War,  stores  of 
liquor  were  destroyed  prior  to  the  surrender  of  cities  to  the 
Federal  troops,  in  order  to  avoid  disorder  and  excesses.  In 
one  of  the  cases  it  was  held  that  no  municipal  liability  arose 
out  of  such  destruction,  and  that  the  pledge  of  the  city  to 
indemnify  created  no  binding  o])ligation  ;3"  in  another  case 
it  was  held  that  the  imperative  necessity  of  the  case  was  a 
sufficient  defense  to  an  action  brought  by  the  owner  of  the 
liquor  against  the  persons  directly  responsible  for  its  destruc- 
tion; the  case  was  treated  as  similar  in  principle  to  the  destruc- 
tion of  property  to  check  the  spread  of  fin^  but  there  was 
evidence  in  the  casf  tending  to  show  that  the  owner  cons('nt(Ml 
to  the  destruction  in  reliance  uj)()n  the  assurance  tliat  .111 
assessment  Avould  l)e  levied  to  grant  liim  eompensntion.-'' 

25  Broom  Constitiitioual  Law,  110-  ;{57 ;    UiiHcmI   Stales   v.    racific   "Rail- 

]19.  road  Co.,  120  U.  S.  -227. 

20  Nicolas      Prococrlinps      of      llic  -» ITnitod     Statos     v.     Hussoll,     1.'! 

Privy     Council     V,     |..     Ill,     I.'.v r  Wall.   (523. 

Fowlora  Xf,  21,  22.  •'<"  Wallace    v.    Riclinionr],    <t  I     Va. 

-TCoko'H  Third    Iiislitiitcs  H.'l,   S4,  204,  IW  L.  H.  A.  .ir.l. 

12  Rep.  12.     See  §  .IIO,  supra.  -'i  IlarriHoii    v.    Wisdinii,    7    Ilcisk 

2H  Resinihlica  v.  Sparliawk,  1  Dall.  (Tciin.),  !tO,  1872. 


CHAPTER  XXV. 

CONFISCATORY  LEGISLATION. 
A.     EETROACTIVE  PEOHIBITION.     §§538-547. 

§  538.  In  general.— Principle  of  non-retroactive  operation.— 
A  problem  of  pecviliar  difficulty  is  presented  by  retroactive  po- 
lice legislation  which  substantially  destroys  vested  property 
I'ights  to  accommodate  a  change  of  surrounding  circumstances, 
t)r  of  public  sentiment,  while  the  condition  of  the  property  it- 
self remains  what  it  Avas  before. 

Most  police  legislation,  even  for  the  protection  of  safety  and 
health  is  precautionary  in  its  nature,  i.  e.  it  does  not  deal  with 
danger  which  is  imminent  to  such  degree  that  loss  or  injury 
may  be  expected  almost  as  a  certainty,  but  with  conditions 
under  which  those  who  are  accustomed  to  them  can  live  with- 
out a  sense  of  injury  or  even  of  discomfort. 

Therefore  the  general  rule  is  that  such  legislation  operates 
only  prospectively,  and  does  not  demand  the  sacrifice  of  exist- 
ing physical  property.  So  the  prohibition  of  wooden  buildings 
within  designated  "fire  limits"  applies  only  to  buildings  to 
be  erected  in  the  future.  A  law  which  would  require  all 
frame  buildings  to  be  taken  down,  or  prohibit  their  occupation, 
would  undoubtedly  be  regarded  as  unconstitutional.^  It  would 
also  seem  that  ordinary  repairs  to  frame  houses  cannot  be 
prohibited,^  but  repairs  may  be  directed  to  be  made  with  fire 
proof  material,  and  repairs  may  be  prohibited  where  the  prop- 
erty has  been  damaged  or  depreciated  below  a  stated  propor- 
tion of  its  value  so  that  repairs  would  be  substantially  a  new 
erection.3  No  one  would  contend  that  the  power  to  prescribe 
the  height  of  buildings  could  be  exercised  by  requiring  exist- 
ing buildings  to  be  reduced  to  that  height,  or  that  in  introduc- 
ing new  building  regulations  for  tenement  houses,  existing 
tenements  could  be  ordered  to  be  destroyed  or  abandoned  in 
order  to  have  all  houses  in  the  city  come  up  to  the  new  stand- 

1  As  to  ordinance,  Wadleigh  V.  Gil-  ^  :\rt.   Vernon  Bank  v.   Sarlls,   12f> 

man,    12   Me.   403;    Buffalo    v.    Cha-      Ind.  201. 
deayne,  134  N.  Y.  163.  ■=  Illinois  City  Act  V,  §  1,  No.  62. 

567 


568  CONFISCATORY  LEGISLATION.  §  539 

ard.  The  New  York  Tenement  House  Law  of  1901  contains 
throughout  separate  provisions  applicable  to  existing  houses 
and  others  applicable  to  houses  to  be  erected  in  the  future. 

§  539.  Prohibition  against  the  use  of  property.— The  rule 
of  prospective  operation  is  invariably  observed  where  its  disre- 
gard would  involve  the  physical  destruction  of  property,  not 
however  where  retroactive  operation  only  means  that  property 
is  rendered  practically  useless  and  worthless.  The  latter  is  the 
effect  of  prohibitory  liquor  legislation  in  so  far  as  it  may 
destroy  the  entire  value  of  breweries  or  of  supplies  of  liquor 
on  hand  which  the  owner  cannot  personally  consume  and  which 
he  may  not  dispose  of  to  others.  It  is  true  that  the  technical 
status  of  the  property  as  such  is  not  lost,  and  therefore  the 
owner  retains  his  remedies  for  recovery,  etc.  ;■*  but  it  can 
hardly  be  denied  that  for  every  practical  purpose  the  owner 
is  deprived  of  his  property.^  The  courts  of  Delaware  and 
Rhode  Island  have  taken  the  view  that  the  prohibition  of 
profitable  use  merely  lessens  the  value  of  the  property.*^ 
O^  the  other  hand,  a  statute  of  New  York  which  made  the 
possession  of  liquor  to  be  used  for  sale  as  a  beverage  a  crim- 
inal offense,  and  authorised  its  destruction  as  a  public  nuisance, 
was  declared  unconstitutional  in  its  operation  on  liquor  oAvned 
at  the  time  when  the  statute  Avas  enacted."  In  contesting  the 
validity  of  the  Iowa  prohibition  law  of  1860  before  the  United 
States  Supreme  Court,  it  was  contended  that  a  glass  of  whisky 
for  the  sale  of  which  the  defendant  was  tried,  was  owned  by 
him  when  the  law  was  enacted.  Th(>  court  regarded  the  owner- 
ship as  not  proved,  and  treated  the  act  of  1860  as  a  mere  con- 
tinuation by  reenactment  of  an  earlier  law;*^  it  is,  howevoi*. 
significant  that  Justice  Bradley  in  a  concurring  opiiion 
endorsed  by  two  other  justices,  expressed  himself  to  the  effect 
that  a  prohibition  hiw  cannot  interfere  with  vested  rights,  and 
that  such  rights  cannot  be  removed  except  by  awarding  com- 

•  Preston  v.  Drew,  :V,i  .Me.  ."irjS.  liibition.         Stickrod      v.      Coninmii- 

•'■Tlio    .Supreme    Court    of    Mjiinc  wcMltli,  sr,  Ky.  128.'),  .T  S.  W.  .^)Sn. 

nr.tieod    the    constitutional    question  "State      v.      Allmond,      '_'      Houst. 

l.iit      :i|pp:irently     «li.l     not     <1c..im     it  (Del.)    6TJ ;    St;ite    v.    Paul,    .^    K.    I. 

wortli     serious     consideration,     State  iS.I,   1S.')S. 

V.     {''airfield,    'M    Me.    .^)17.       A     law  t  Wym-lianier   \.    Pe(,|,le.    K!    N.    V. 

forl>iddinji   only   sales   in    very   small  ."7S. 

(juantities.    as,    e.    t^.,    l)y    tlie    fflass,  ><  P.artcineyer  v.  Iowa,  IS  Wall  IJD. 

constitutes    regulation    and    not    pro- 


§  540  RETROACTIVE  PROHIBITION.  5(i9 

peiisalioii  to  the  owikt.     The  same  view  was  later  on   taken 
by  Justice  Brower  in  a  lower  federal  court.-' 

§  540.  Mugler  v.  Kansas.  — The  question  was  aj^ain  pre- 
sented in  Mugler  v.  Kansas.^'^  The  defendants  contended  that 
their  respective  breweries  were  erected  when  it  was  lawful  to 
engage  in  the  manufacture  of  beer  for  every  purpose  (i.  e.  not 
only  for  medicinal  purposes),  that  such  establishments  would 
become  of  no  value  as  property  or  at  least  would  be  materially 
diminished  in  value  if  not  employed  in  the  manufacture  of 
beer  for  every  purpose,  and  that  the  prohibition  upon  their 
being  so  employed  was  in  effect  a  taking  of  property  for  public 
use  without  compensation,  depriving  the  citizen  of  his  prop- 
erty wnthout  due  process  of  law;  they  contended  in  other 
words  that  (as  the  court  puts  it)  prohibitory  legislation  cannot 
be  enforced  against  those  who  at  the  time  happen  to  own 
property  the  chief  value  of  which  consists  in  its  fitness  for 
such  manufacturing  purposes  unless  compensation  is  first  made 
for  the  diminution  iu  the  value  of  their  property  resulting 
from  such  prohibitory  enactment. 

This  contention  the  Supreme  Court  declares  to  be  inad- 
missible. It  says  that  the  prohibition  simply  upon  the  use  of 
property  for  purposes  that  are  declared,  by  valid  legislation, 
to  be  injurious  to  the  health,  morals,  or  safety  of  the  commu- 
nity, cannot  in  any  just  sense  be  deemed  a  taking  or  an  appro- 
priation of  property  for  the  public  benefit;  that  the  power 
which  the  states  have  of  prohibiting  such  use  by  individuals 
of  their  property  as  will  be  prejudicial  to  the  health,  the 
morals,  or  the  safety  of  the  people,  is  not,  and  consistently 
with  the  existence  and  safety  of  organised  society,  cannot  be 
burdened  Avith  the  condition  that  the  state  must  compensate 
such  individual  owners  for  the  pecuniary  losses  they  may  sus- 
tain by  reason  of  their  not  being  permitted  by  a  noxious  use 
of  their  property  to  inflict  injury  upon  the  community;  that 
the  state  by  allowing  the  manufacture  of  liquors  when  the 
breweries  were  purchased  or  erected  did  not  give  any  assur- 
ance or  come  under  any  obligation  that  its  legislation  upon 
the  subject  would  remain  unchanged. 

§  541.  Powell  V.  Pennsylvania.— The  legislation  prohibiting 
the  manufacture  and  sale  of  oleomargarine  affected  existing 
property  in  the  same  manner  as  prohibitory  liquor  legislation. 

9  State  V.  Walruff,  26  Fed.  178.  lo  123  U.  S.  623,  1887. 


570  CONFISCATOEY    LEGISLATION.  §  541 

In  the  decisions  of  the  state  courts  sustaining  prohibition" 
this  effect  upon  existing  property  was  not  considered.  In 
Powell  V.  Pennsylvania^^  the  defendant  offered  to  prove  that 
the  article  sold  by  him  was  part  of  a  large  and  valuable  quan- 
tity manufactured  prior  to  the  21st  of  ilay,  1885.  in  accordance 
with  the  laws  of  the  Commonwealth  relating  to  the  manufac- 
ture and  sale  of  such  article  so  sold  by  him ;  that  for  the  pur- 
])ose  of  prosecuting  that  business  large  investments  were  made 
by  him  in  the  purchase  of  suitable  real  estate,  in  the  erection 
of  proper  buildings,  and  in  the  purchase  of  the  necessary 
machinery  and  ingredients;  that  in  his  traffic  in  said  article 
he  macie  large  profits ;  and  if  prevented  from  continuing  it, 
the  value  of  his  property  employed  therein  would  Ix^  entirely 
lost,  and  he  be  deprived  ol"  the  means  of  livelihood.  This 
aspect  of  the  legislation  is  not  discussed  in  the  opinion  of  the 
Supreme  Court,  but  perhaps  its  closing  remark  refers  to  it : 
"It  is  also  contended  that  the  act  of  ]\Iay  21,  1885,  is  in  con- 
flict Avith  the  Fourteenth  Amendment  in  that  it  deprives  the 
defendant  of  his  property  without  th;it  compensation  required 
by  law.  This  contention  is  without  merit,  as  was  held  in 
^lugler  V.  Kansas." 

Thus  the  doctrine  pronounced  Avith  regard  to  intoxicating 
liquor  was  without  hesitation  applied  to  oleomargarine.  The 
court  did  not  take  into  consideration  the  very  important  fact 
that  in  the  Kansas  case  the  prohibition  to  which  the  destruc- 
tion of  values  was  incident,  was  a  reserved  right,  since  the 
manufacture  of  ]if|uor  had  been  carried  on  under  temporary 
licenses  which  had  expired.^ ^'  Notwithstanding  this  fact,  the 
Supreme  Court  had  admitted  that  in  liestroAnng  the  value 
ol"  property  invested  in  the  nianufacture  of  liquor,  the  legis- 
lature had  probably  gone  to  the  utmost  vers;e  of  constitutional 
niillioiity.  Tl  was  certainly  carrying  IIh'  exercise  ol"  stale 
l)ower  one  step  further  to  destroy  values  invested  in  an  article 
and  a  business  iiili-iiisicnllx-  harndess  .iiid  having  an  unques- 
tioned legal  status;  and  a  retroactive  prohibition  having  this 
iCl'cct  ouulit  not  to  bnvc  bc(Mi  jdlowed. 

>'  I'dwell     V.    Commonwealtli,     111  I\:iii.    l'^l',    wIk^tc    it    was    sanl    llial 

]'a.  St.  'Jfi.*);   State  V.   A<lilin<j;t(in,  77  ])()tli  tlio  issuing  and  tlio  roiicwal  of 

Mo.   110.  iht'    licenso    umlor    wliicli     Mailer's 

'-  127  n.  S.  (578.  browory  was  opcratod   dcpondod   ca- 

i'<TliiH      fa<'t      was     very     clearly  tindy   apon   tlic  icinpcr  and    <lisposi- 

pointfd    <nil    ill    Stale   v.    Mufjler,    '_'!'  (ion  of  tlie  (•oaiimniity. 


i;  542  RETROACTIVE   PROHIBITION.  571 

i?  542.  Regulation  involving-  partial  prohibition.  — But  the 
.sound  principle  that  police  legislation  should  not  forbid  the 
only  profitable  use  of  which  property  is  capable  and  to  which 
it  has  been  put  under  the  sanction  of  the  law,  must  not  be 
stretched  to  unreasonable  lengths.  Legitimate  police  regula- 
tion may  involve  the  improvement  and  alteration  of  property, 
and  this  may  re.sult  in  rendering  parts  of  the  property  to  be 
improved  or  altered  useless  and  perhaps  in  destroying  their 
value  as  property.  This  should  not  be  regarded  as  the  taking 
of  property,  but  as  a  necessary  incident  to  regulation,  for  as 
the  minor  part  has  value  only  as  serving  the  purposes  of  the 
principal  property,  it  must  necessarily  yield  to  the  require- 
ments of  the  latter.  Thus  where  the  law  requires  a  house  to 
be  supplied  with  running  water  and  sewerage  connections, 
wells  or  cisterns  or  privy  vaults  may  be  rendered  useless  or 
even  be  required  to  be  abated,  though  not  imminently  danger- 
ous to  health.  Such  a  requirement  is  not  open  to  objection  as 
taking  property  without  due  process  of  law.^'* 

§  543.  Prohibition  operating  upon  an  established  business 
or  practice  of  profession.— An  established  business  or  pro- 
fession is  in  essential  respects  like  a  right  of  property.  The 
experience  gained  in  pursuing  it,  the  connections  formed 
through  it,  the  confidence  and  custom  of  patrons  and  clients, 
are  valuable  and  profitable  assets,  which  the  law,  under  the 
name  of  good-will,  recognises  as  a  species  of  property,  and  as, 
to  a  certain  extent,  transferable.  The  claim  to  protection 
grows  with  the  amount  of  capital  invested  or  with  the  study 
and  preparation  required  for  the  successful  practice  of  a  pro- 
fession.^^ 

An  established  business  or  profession,  like  any  other  vested 
right,  is  subject  to  the  continuing  power  of  the  legislature  to 
prescribe  regulations  by  which  its  pursuit  is  brought  into 
conformity  with  the  requirements  of  the  public  Avelfare.  So 
with  regard  to  professional  qualifications,  the  Supreme  Court 
has  said  that  the  same  reasons  which  control  in  imposing  eon- 

14  Harrington  v.  Providence,  20  R.  S.  114.  "The  right  to  continue  their 
I  233,  38  L.  R.  A.  305;  Common-  prosecution  is  often  of  great  value 
wealth  V.  Roberts,  1.55  Mass.  281,  to  the  possessors,  and  cannot  be  ar- 
16  L.  R.  A.  400;  State  \.  Barge,  82  bitrarily  taken  from  them,  any  more 
Minn.  256,  53  L.  R.  A.  428.  than  their  real  or  personal  property 

15  Dent  V.  West  Virginia,   129  U.  can  be  thus  taken. 


;  J 


572  CONFISCATOKY    LEGISLATION.  §  543 

ditions,  upon  compliance  with  which  the  physician  is  allowed 
to  practice  in  the  first  instance,  may  call  for  further  conditions, 
as  new  modes  of  treating  disease   are   discovered,   and  that 
therefore  a  knowledge  of  the  new  acquisitions  of  the  profession 
may  be  required  for  continuance  in  its  practice.!^     The  state- 
ment   is,    however,    qualified    by    adding    that    the    condition 
imposed  must  be  one  that  can  be  readily  met  by  any  one  with 
reasonable  effort  and  application.     The  statute  of  West  Vir- 
ginia required,  as  a  condition  for  being  allowed  to  practice  or 
to  continue  to  practice  medicine,  either  a  continuous  previous 
practice  for  the  period  of  ten  years,  or  the  possession  of  a 
diploma  from  a  reputable  college,  or  the  passing  of  an  exam- 
ination.    The  defendant  had  practiced  for  only  six  years,  and 
the  diploma  he  held  was  from  a  college  not  recognised  as 
reputable.     It  was  held  that  he  might  be  required  to  submit 
to  an  examination— undoubtedly  a  condition  of  considerable 
hardship  to  a  bona  fide  established  practitioner,  but  one  which 
may  be  perfectly  legitimate  with  regard  to  one  who  has  just 
set  up  in  business  in  anticipation  of  the  new  requirement  and 
in  the  hope  of  escaping  it.     The  requirement  of  a  diploma, 
without  the  possibility  of  proving  competence  by  examination, 
would  be  an  unreasonable  condition,  since  it  would  be  mani- 
festly impossible  for  practitioners  to  resume  study  at  a  college 
for  a  number  of  years.     A  statute  making  this  latter  require- 
ment of  all  who  had  not  practiced  in  the  state  for  five  years 
was  sustained  in  Michigan  against  the  strong  dissent  of  two 
justices,  and  contrary  to  sound  principle.^'     The  application 
of  the  new  law  requiring  some  proof  of  qualification  to  exist- 
ing practitioners  occurs  in  a  number  of  states  in  the  case  of 
medicine  and  some  other  avocations  ;^^  never,  it  seems,  in  the 
requitciiiciils  for  admission  to  the  ])ractice  of  the  law.     If  pos- 
sible a  statute  should  be  interpreted  as  not  applying  to  exist- 
ing practitioners.^^ 

i"Dcnt   V.    West    Virfjinia,    lliit    U.  quosllon   ns  roi)clii(l('(l  by  oiirlicr  de- 

S.  114;  Keetz  V.  Michiyiin,  18S  U.  a.  cisioiis.       Aflirmod     Kcotz    v.     Michi- 

.'505.      Also   State   ox   rol.  'BurroughH  gan,  188  U.  S.  50.1. 

V.   Wohstor,   ino    hid.   007,  :itid  casoH  i«  In    cjiso    of    ])lutnl)ors,    Laws    of 

fited  thr-r.-.  Illinois,  1807,  p.  U70. 

IT  People    V.    !'lii|i|iiii,    70    Mich.    (i.  "• /»     Tie    AppliciitionH    1o    adniis- 

See   Midi.   Gen.   LawH,   §   5280;    also  sion    1o    i>ractice,    14    S.    I).    429,    85 

People    V.    Reetz,    127    Mi(di.    87.    80  N.    W.   002. 
N.    W.    .^0^.      TliiH    ease    treats    the 


§  544  EX  POST  FACTO  UlSQUALlFlCATiON.  573 

§  544.  The  test  oath  cases.— The  question  wliether  condi- 
tions may  be  imposed  for  the  right  to  continue  in  a  business 
or  profession  which  it  may  be  absokitely  impossible  for  one 
already  engaged  in  it  to  comply  with,  has  been  presented  l<» 
the  United  States  Supreme  Court  in  some  notable  cases.  The 
clause  of  the  federal  constitution  invoked  was  that  forbidding 
the  enactment  of  ex  post  facto  laws  which  before  the  addition 
of  the  Fourteenth  Amendment  was  perhaps  the  only  one  appli- 
cable. 

The  Constitution  of  ^lissouri  of  1865  prescribed  an  oath  to  be 
taken  by  persons  holding  certain  offices  and  trusts  and  follow- 
ing certain  pursuits,  by  which  they  were  required  to  deny  that 
they  had  done  certain  things  or  had  manifested  by  act  or  word 
certain  desires  or  sympathies,  the  purpose  being  to  prove 
loyalty  to  the  union  during  the  time  of  the  rebellion.  No 
person  was  allowed,  without  taking  the  oath,  to  practice  as  an 
"attorney  or  counselor  at  law,  or,  as  a  bishop,  priest  or  clergy- 
man of  any  religious  persuasion,  to  teach  or  preach  or  solem- 
nise marriages.  Congress  by  act  of  July  2,  1862,  required  a 
similar  oath  as  a  condition  for  being  allowed  to  appear  as 
attorney  or  counselor  in  any  of  the  courts  of  the  United  States. 
These  laws  were  held  to  be  ex  post  facto  and  therefore  uncon- 
stitutional, since  the  exclusion  from  the  profession  was  in  the 
nature  of  a  penalty;  it  was  not  recognised  as  a  police  regula- 
tion for  the  reason  that  the  past  conduct  as  to  which  the 
oath  was  exacted  related  to  matters  which  had  no  connection 
with  the  practice  of  these  professions.-'* 

§  545.  Hawker  v.  New  York.— A  different  view  was  taken 
of  the  effect  of  a  past  conviction  for  crime  upon  the  practice 
of  medicine.  A  statute  of  New  York  of  1893  provided  that 
no  person  should,  after  conviction  of  felony,  attempt  to  prac- 
tice medicine,  on  penalty  of  fine  and  imprisonment.  The 
defendant  at  the  time  of  the  passage  of  the  act  was  engaged 
in  the  practice  of  medicine,  but  had  been  convicted  of  felony 
in  1878.  In  1896  he  was  indicted  and  convicted  for  practicing 
illegally  under  the  statute  of  1893  and  the  conviction  was  sus- 
tained by  th(^  liighest  state  court. ^^     The  case  was  carried  to 

20  CummingR  v.    Missouri,   4   Wall.  -i  People    v.    TTawker,    l.')2    N.    Y, 

277;  ex  juvrte  Garland,  4  Wall.  333;      234. 
four     jnstices     dissenting     in     each 
case. 


574  CONFISCATOEY    LEGISLATION.  §  546 

the  federal  supreme  court  on  the  ground  that  the  act  as  thus 
retroactively  construed  was  an  ex  post  facto  law.  The 
Supreme  Court  upheld  the  act  as  a  valid  exercise  of  the  police 
power,  three  justices  dissenting.^-  It  Avas  held  that  the  state 
must  have  continuing  poAver  to  prescribe  the  conditions  under 
which  the  practice  of  medicine  may  be  safely  carried  on ;  that 
character  is  essential  to  safe  practice,  and  that  the  state  may 
infer  from  previous  conviction  of  felony  the  lack  of  proper 
character  qualification.  "Whatever  is  ordinarily  connected 
with  bad  character  or  indicative  of  it,  may  be  prescribed  by 
the  legislature  as  conclusive  evidence  thereof."  That  the  rule 
may  work  hardly  or  the  test  fail  in  particular  cases,  can  be  no 
objection,  for  all  tests  of  character  are  liable  to  failure. 

§  546.  Criticism  of  Hawker  v.  New  York.— The  decision 
is  open  to  serious  question.  It  may  be  conceded  that  the 
state  may  pass  a  law  under  which  licenses  to  practice  medi- 
cine may  be  refused  to  those  who  have  been  convicted  of 
felony  before  the  enactment  of  the  law.  The  previous  con- 
viction makes  a  presumption  of  bad  character,  and  as  there 
can  be  no  conclusive  evidence  of  bad  character,  a  strong  pre- 
sumption may  be  sufficient  to  exclude  from  entrance  upon  a 
pursuit  to  which  the  applicant  has  no  vested  right,  and  as  to 
which  the  burden  of  proving  qualification  nuiy  be  tlu-owii 
upon  him.  Hut  conditions  are  altered  aftei-  he  li.-'.s  IxH'omc 
established  in  llie  business.^:*  lie  has  now  ae(|uii-e(l  a  right, 
still  subject  to  regulation,  still  subject  to  i)roof  of  qualifica- 
tion, but  the  i)r()()t'  must  not  be  made  impossible.  He  may, 
perhaps,  after  previous  conviction,  be  required  to  overthi'ow 
the  presumption  of  bad  character  by  proof  of  unblemished 
life  and  good  reputation;  but  under  this  statute  he  is  abso- 
lutely debarred  fi'oiii  showing,  what  may  be  the  fact,  that  he 
has  reformed.-'      The  statute  is  not  a  proi)er  police  regulation 

i!''!  Hawker  v.  New  York,  170  U.  S.  sliould  l>e  esteeniod  ninro  s;ur»>(l  tli.iii 

I^Cf^  Ili(>     right     to     niiike     coiitracls     by 

'.;;tTliiH   is  (IciiiiMl    ],y   tli.'   Sii|irciiic  ■\vliicli  pro)>orty  iniglit  be  Mcquirod? " 

Court  of  Oliio:    "The  (listiint  idii  1m-  Sl;i1r  v.  (Iravett,  65  Oh.  St.  289,  6li 

tween  the  right  to  establish  a  prac-  N.  E.   .T-T),   r).'5  L.  "R.  A.   701.     Does 

tien  and  Ihe  right   1<>  imrsiie  a  j>ra<-  the  Suiireiue  Court  of  Ohio  mean  to 

lice  already  cHtablislK'd  seems  to  be  deny  the  peculiar  sanetity  of  vestetl 

inadmissible.      T^y    \\hat     process    of  rights? 

reasoning    <'ould     it     V)e     maintained  -'  fn    this    respect     the    st^iliitc    in 

that    the     ri^'ht     to    enjoy     properly  rjuestion    dilTers   from   one   whicli   us- 


^:,  17  RETKOACTIVE  PKOHIBITIOX,  575 

since  it  establishes  a  conclusive  presumption  of  fact  the  neces- 
sary effect  of  which  to  take  away  an  acquired  right;  it  cannot 
be  maintained  as  establishing  a  cause  of  forfeiture,  since  in 
making  the  conviction  of  a  felony  conclusive  evidence  of  bad 
character  when  it  was  not  so  before,  it  adds  to  the  punishiiKMit 
after  the  offence  has  been  expiated,  and  is  therefore  an  ex  post 
facto  law. 

The  decision  in  Hawker  v.  New  York  seems  to  be  without 
a  parallel ;  the  ease  of  Foster  v.  Police  Commissioners,-''  cited 
by  the  Supreme  Court,  was  not,  as  stated  by  it,  one  of  an 
ordinance  revoking  a  liquor  ordinance  for  past  acts,  but  in 
that  case  the  license  had  expired  and  its  renewal  was  applied 
for  and  refused.     There  was  no  vested  right  to  such  renewal.^*' 

§  547.  Prohibition  of  oleomargarine  business.— In  sustain- 
ing the  prohibitoiy  oleomargarine  legislation  of  Pennsylvania, 
the  Supreme  Court  sanctioned  not  only  the  constructive  tak- 
ing of  valuable  property  by  making  its  profitable  use  impossi- 
ble, but  also  the  destruction  of  an  established  business.  It  has 
already  been  shown  that  the  analogy  of  the  liquor  business 
relied  upon  by  the  court  was  fallacious,  since  the  latter  was 
carried  on  under  revocable  license..    If  Powell  v.  Pennsylvania 

tiiblishes  a  disqualification,  of  con-  parently  on  tli3  theory,  that  under 
tinning  operation,  e.  g.,  excluding  the  police  power  the  question  of 
one  affected  with  a  contagious  dis-  qualification  may  be  raised  continn- 
ease  from  practicing,  or  forbidding  ally  de  novo.  State  ex  rel.  Chap- 
railroad  engineers  affected  with  man  v.  Board  of  Medical  Examin- 
color  blindness  to  continue  in  their  ers,  34  Minn.  387,  26  N.  W.  123; 
employment.  Traer    v.    State    Board    of    Medical 

-■-'102  Cal.  483.  Examiners,   106  la.   559;    Meffert  v. 

-<■'  The  revocation  of  a  licpnse  for  State    Board    of    Medical    Ecgistra- 

cause  occurring  or  operating  during  tion  (Kans.),  72  Pac.  247.     See  also 

continuance  in  practice  may  be  pro-  People  v.   McCoy,   125   111.   289.      If 

vided   for   so   as    to   apply   to   those  the    right    to    practice    a    profession 

already  established  in  the  profession  after  license  once  granted  is   to   be 

as   well   as   to    future   practitioners,  regarded   as   an   acquired    or   vested 

for  this  is  an  exercise  of  the  continu-  right — and  it  seems  it  should  be  so 

ing  power  of  regulation.     The  scri-  considered — then   the  final   adjudica- 

(lus    question    in    this    connection    is  tion  of  a  cause  of  forfeiture  should 

whether    the    power    of    revocation  belong  to  the  courts.     The  question 

may    be    conclusively  '  vested    in    an  is  one  of  the  doctrine  of  separation 

ndministrntivo   board,   without    right  of    powers    and    as    such    does    not 

of  appeal   to   the   courts.     The   pre-  properly    fall    within    the    scope    of 

■   ponderance  of  opinion   seems   to   be  this  treatise, 
that  the  power  may  be  so  vested,  aji- 


576  CONFISCATORY   LEGISLATION.  §  54H 

is  to  be  accepted  as  sound  constitutional  law,  an  established 
business  can  be  destroyed  to  further  a  new  legislative  policy 
for  the  promotion  of  health  or  the  suppression  of  fraud, 
although  the  business  destroyed  is  neither  unsanitary  or  fraud- 
ulent. Such  destruction  Avould  be  impossible  under  the  tradi- 
tions and  understandings  which  bind  the  practice  of  European 
governments.  The  present  state  of  the  authorities  in  America 
cannot  be  regarded  as  satisfactory. 

B.  EXPENSIVE  ALTERATIONS  AND  IMPROVEMENTS. 

§§  548-549. 

§  548.  What  is  an  excessive  requirement.— Regulation  will 
amount  to  confiscation,  although  the  owner  retains  possession, 
use,  and  power  to  dispose  of  his  property,  Avhere  he  is  required 
either  to  make  such  expensive  alterations  or  improvements,  or 
to  accept  such  low  remuneration  in  return  for  the  use  of  his 
property,  that  the  property  ceases  to  be  profitable. 

If,  notwithstanding  the  imposed  expenditure  or  the  reduced 
compensation,  the  business  or  property  continues  to  yield  a 
reasonable  profit,  there  is  no  more  than  regulation,  for  in  that 
case  the  requirement  may  be  looked  upon  as  merely  the  enforce- 
ment of  conservative,  economic  management,  under  which  the 
owner  simply  foregoes  a  profit  which  he  could  make  only  by  the 
sacrifice  of  legitimate  public  interests ;  but  if  the  requirement 
is  entirely  disproportionate  to  the  value  and  the  possible 
returns  of  the  property,  the  practical  effect  is  the  same  as  if 
the  property  were  actually  taken. 

The  question  of  the  constitutionality  of  excessive  require- 
ments in  the  way  of  improvements  and  alterations  has  received 
comparatively  little  discussion.  The  most  conspicuous  instance 
is  that  of  the  abolition  of  railroad  grade  crossings.  The 
requirement  has  been  upheld  in  the  state  courts  and  liy  llie 
Ignited  States  Supreme  Court. 2"  This  legislation  shows  tliat 
the  absolute  amount  of  the  expenditure  afToi-ds  no  criterion  of 
the  validity  of  the  re<juireinent  :  foi-  while  in  some  cases  mil- 
lions had  to  be  expended,  the  profitableness  of  the  railroad  was 
in  no  case  destroyed.  Tt  is,  however,  a  significant  fact,  due, 
perhai)s.  to  llie  peculiMi'  problems  of  responsibility  in  tln^se 
cases, 2^  tlnit  the  ])nr(|rii  ol'  tlie  improvement  lias  in  ;i  niniihei- 
f)f   states   been    dividi-d    bctweiti    the    rnilrond    coinpMiiii's    :iii(l 

2T  New    York    .iinl    New    Eiiffland  2s  As  to  these,  see  hi-low,  §  (i.'Jl. 

R.  Co.  V.  Bristol,  ir.l   TT.  S;  r,m. 


§549  EXPENSIVE   IMPROVEMENTS.  577 

the  municipalities  or  state,  either-  iiiidcr  statutory  rcfinircirK-nt 
or  by  voluntary  ajjjreement.-'' 

v^  549.  Limit  of  constitutional  power.— The  power  to  requir(! 
alterations,  even  in  the  interest  of  public  safety,  is  not  without 
limit.  What  has  been  said  with  reference  to  sanitary  improve- 
ments is  true  of  all  similar  requirements,  namely,  that  within 
proper  limits  the  courts  must  judge  whether  the  amount 
required  to  be  expended  is  reasonable  or  not,  and  that  the 
compulsion  of  such  improvements  must  be  regarded  as  legal 
as  long  as  their  cost  does  not  exceed  what  may  be  termed  one 
of  the  conditions  upon  which  individual  property  is  held.''-" 

Perhaps  it  is  also  true  that  what  would  be  a  reasonable 
requirement  for  the  protection  of  public  safety  would  be 
excessive  where  the  public  interest  was  less  urgent.  The  ques- 
tion may  arise  where  alterations  are  demanded  to  remove 
obstructions  to  navigation,  such  as  the  lowering  of  tunnels  or 
the  heightening  of  bridges.  The  Federal  law  of  September 
19,  1890,  authorises  the  Secretary  of  War  to  require  altera- 
tions in  structures  interfering  with  navigation ;  but  it  has  not 
yet  been  decided  whether  compensation  must  be  paid  or  not.^^ 

C.     EEDUCTION  OF  CHARGES.     §§  550-554. 

§  550.  Reasonableness  and  judicial  control.— The  power  to 
regulate  charges  is  one  of  a  purely  economic  character.  It 
has  never  been  pretended  that  for  the  furtherance  of  economic 
interests  of  the  public  an  owner  can  be  absolutely  deprived  of 
his  property  without  being  awarded  full  compensation,  and 
the  legislature  in  fixing  rates  has  ever  claimed  to  exercise 
merely  a  power  of  reasonable  regulation  for  the  prevention  of 
oppression. 

It  has  been  shown  that  after  some  hesitation  the  courts  have 
asserted  and  now  freely  exercise  the  power  to  control  the 
legislative  determination  that  a  rate  is  reasonable.^-  It  has 
therefore  become  incumbent  upon  the  courts  to  lay  down  the 
principles  by  Avhich  the  question  of  reasonableness  must  be 

29  Massachusetts    Rev.    Laws,    ch.  ^o  Health    Department    v.    Trinity 

112,    §    131;    Laws    1890,    ch.    428;  Church,  145  N.  Y.  32. 

Woodruff   V.   Catlin,   54   Conn.    277;  si  Rider  v.  United  States,   178  U. 

Argentine  v.  Atchison  &;c.  R.  Co.,  55  S.    251,    1900. — As    to    rights    quali- 

Kan.  730,  30  L.  R.  A.  255;  Brooks  fied  by  easement   of  navigation,   see 

V    Philadelphia,   162  Pa.   123,  24  L.  §  576,  infra. 

T?.  A.  781.  32  §§  379-383,  supra. 

37 


578  CONFISCATORY    LEGISLATION.  §  551 

judged,  and  the  federal  supreme  eoui't  alone  can  conclusively 
establish  these  prmciples  in  an  affirmative  manner.  However, 
this  important  problem  has  not  yet  been  finally  solved. 

§  551.  Basis  of  calculation  the  whole  business  within  the 
state.— Two  secondary  questions  applying  speciall}'  to  railroad 
rates  may  be  regarded  as  settled :  first,  the  reasonableness  or 
unreasonableness  of  rates  prescribed  by  a  state  for  the  trans- 
portation of  persons  and  propert}^  wholly  within  its  limits 
must  be  determined  without  reference  to  the  interstate  busi- 
ness done  by  the  carrier  or  to  the  profits  derived  from  it,  so 
that  the  state  cannot  justify  unreasonably  low  rates  for  domes- 
tic transportation  on  the  ground  that  the  carrier  is  earning 
large  profits  on  its  interstate  business  over  which  the  state  has 
no  control,  nor  the  carrier  justify  unreasonably  high  rates  on 
domestic  business  on  the  ground  that  he  will  not  be  able  other- 
wise to  meet  losses  on  interstate  business  •,'^'^  second,  within 
the  state  the  test  of  reasonableness  must  be  applied  on  the 
basis  of  that  business  done  on  the  whole  line,  and  not  on  any 
particular  portion  of  it.^^ 

The  first  rule  rests  upon  jurisdictional  limitations,  and  if 
these  Avere  removed  would  be  contrary  to  the  spirit  of  the 
second.  If  rates  were  prescribed  by  Con-gress  the  first  rule 
Avould  clearly  not  apply. 

The  second  rule  is  justified  by  the  fact  that  a  railroad  com- 
pany requires  the  sanction  of  the  state,  as  an  entirety  and  may 
llierefore  be  treated  as  an  entirety.  It  is  true  that  under  it 
unequal  returns  may  be  received  for  efpial  services,  or  equal 
rctui-ns  for  une(|ual  services,  but  if  the  rtMurn  on  the  whole 
l)usiness  is  fair,  it  must  be  tliat  a  loo  small  i-clnrn  on  some  ]-)art 
of  it  is  ofi'set  by  a  more  than  normal  I'ctui'n  on  some  otliei' 
part;  it'  then  there  is  gi-ound  Tor  ('oin|)laiii1,  i1  is  on  the  part 
of  a  portion  of  tlie  i)ublic  and  Jiot  on  the  j)arl  of  the  railroad 
i-onii)any. •"■■'' 

^552.  Value  of  particular  service.  Il  has  Ix-en  said  that 
in  a  husinrss  iiol  cl.-iiniiiiii  s|ic('i;ii  |in\ileges  the  lest  of  reason- 
;d)lcness  nnist  In-  found  in  llic  vahir  of  cmcIi  purl  ifular  serv- 
ice,•"'   hut    it    must    he  f|uestioned   w  lii'lhci-   this   is  a    prad  icahle 

•"••t  Smytli   V.  Ames,   Kl'.!   C.  S.  4()().  •'">  Cottiny  v.  Kmii.  City  Stock  "I'lls. 

•■■•■«  St.' liOiiis  &  S.  I".  1{.  Co.  V.  Cill.  Co..   ls;rr.  S.  7!t.     Sop  niso  Cjoi.  S. 

156  IJ.  S.  ()4!t.  1^   Co.    V.    iiilcrii.'itl.    Rriil^c  <.'<>.,    L. 

:"!■' Sco    Minneapolis    &    Si.    li.    K.  K.  S  App.  Caa.  723. 
Co.  V.  .Minni'Hota,  ISG  C.  S.  -07. 


g  553  KEDU(JT10.\   OF  (JllAKCiES.  579 

rule.  It  is  characteristic  of  all  orgauized  industry  that  it  sup- 
])lies  many  demands  at  the  same  time,  and  our  wlioie  economic 
life  is  adjusted  to  that  fact.  How  much  some  particular  serv- 
ice, as  e.  g.  carrying  a  letter  from  America  to  PJurope,  would 
be  worth  apart  from  the  general  transportation  of  the  mails,  is 
wholly  undeterminable,  o*-  at  least  such  a  consideration  cannot 
be  the  basis  of  legislation.  The  statement  must  be  understood 
in  connection  with  the  circumstances  of  the  case  in  which  it 
was  made,  and  then  means  that  if  a  business  by  the  industry  of 
the  owner,  without  privileges  from  the  state,  has  attained 
exceptional  magnitude,  the  owner  must  not  be  deprived  of  the 
advantage  thereby  gained,  and  has  still  the  right  to  the  same 
returns  as  the  smaller  competitor.  In  other  words,  the  prin- 
ciple of  equality  demands  that  one  man  be  not  discriminated 
against  by  law  simply  because  by  his  own  exertions  he  has 
gained  an  advantage  over  another. 

§  553.  Value  of  property.— Barring  this  question  of  equal- 
ity, the  obvious  test  of  the  reasonableness  of  a  rate  is  whether 
it  allows  a  fair  return  upon  the  value  of  the  property  invested 
in  the  business,  after  paying  for  expenses  of  operation  and 
management.  This  is  the  test  laid  down  by  the  Supreme  Court 
in  Smyth  v.  Ames.-"'^  The  application  of  the  test,  however, 
requires  a  determination  of  what  is  a  fair  return  and  what  is 
the  value  of  the  property  invested  in  the  business. 

As  to  the  value  of  the  property,  the  Supreme  Court  says: 
"The  original"  cost  of  construction,  the  amount  expended  in 
permanent  improvements,  the  amount  and  market  value  of 
its  bonds  and  stock,  the  present  as  compared  with  the  original 
cost  of  construction,  the  probable  earning  capacity  of  the 
property  under  particular  rates  ])rescribed  by  statute,  and  the 
sum  required  to  meet  operating  expenses,  are  all  matters  for 
consideration,  and  nre  to  be  given  such  Aveight  as  may  be  just 
and  right  in  each  case."-'^''  Throe  of  Ihese  items  deserve  par- 
ticular consideration  because  in  most  cases  it  will  be  necessary 
to  make  a  choice  between  them:  cnpitalisation,  cost  of  repro- 
duction, and  actual  cost.  It  is  well  known  that  capitalisation 
in  many  cases  represents  hopes  of  rnturc  earning  capacity 
rather  than  actual  money  invested,  and  even  the  market  value 

3T  169  U.  S.  466;  also  San  Diego  ation  wIumc   waterworks  are  taken 

&c.    Co.   V.    Nat'l     City,    174   U.   S.  over  by  public,  see  Kennebec  Water 

739,  757.  District  v.  Waterville,  97  Me.  185, 

38  169  U.  S.  466,  547.    As  to  valu-  and  cases  there  cited. 


580  CO^'FiSCATUKi     LEUibLATiUN.  §  554 

of  stocks  and  bonds  is  not  a  safe  criterion,  since  it  is  based 
on  earning  capacity,  and  the  reasonableness  of  earnings  is 
the  point  at  issue.  The  cost  of  reproduction,  as  has  been 
pointed  out,33  ^^.^y  not  be  fair,  where  a  pioneer  enterprise  by 
its  existence  has  cheapened  the  cost  of  future  simihir  works. 
The  actual  cost,  imderstanding  thereby  the  actual  necessary 
cost  and  not  extravagant  expenditures,  would,  in  most  cases, 
be  the  fairest  basis  of  estimating  returns;  at  least  for  a  rea- 
sonable period  after  the  enterprise  has  gone  into  operation. 
The  Supreme  Court  has,  however,  intimated  that  original  cost 
need  not  be  considered  where  the  present  owners  acquired 
the  property  at  a  reduced  price.-*^  It  can  certainly  not  be 
said  that  the  Supreme  Court  has  committed  itself  to  a  definite 
principle  of  valuation. 

§  554.     Fair  return.  — The  question  what  is  a  fair  return  is 
still   more    unsettled.     In    Covington    &    Lexington    Turnpike 
Co.  V.  Sandford^i  tlie  Supreme  Court  said :     "It  cannot  be  said 
that  a  corporation  is  entitled  as  of  right,  and  without  refer- 
ence to  the  interests  of  the  public,  to  realise  a  given  per  cent 
upon  its  capital  stock."     This  statement  seems  to  be  made 
without  reference  to  possible  excessive  or  fictitious  capitalisa- 
tion; and  it  receives  additional  significance  from  the  remarks 
made  by  Brewer,  J.,  in  Cotting  v.  Kansas  City  Stock  Yards 
Company4  2  ^yith  reference  to  a  business  discharging  a  public 
service.     "[The  owner]    expresses  his  willingness  to  do  the 
work  of  the  state,  aware  that  the  state  in  the  .jischarge  of  its 
public  duties  is  not  guided  solely  by  a  question  of  profit.     It 
may  rightfully  determine  that  the  particular  service  is  of  such 
importance  to  the  public  that  it  may  be  conducted  at  a  pecu- 
niary loss,  having  in  view  a  larger  public  interest.     At  any 
rntc,  it  does  not  perform  its  services  with  the  single  idea  of 
profit.     Its  thought  is  the  general  public  welfare.     If  in  such 
a   case   an    individual    is   willing   to   undertake   the   work   of 
the  state,  may  it  not  be  urged  Hint  he,  in  a  measure,  sub- 
jects  hiniseir   1o   1lie   sniiie    fules   of   iietion,    and    1li;it    il"   llie 
Ixxly    which    expresses    Hie    .iu<igineiii    of    Ibe    st;it<'    l)elieves 
1lic    i);iftii'iil;ir    services    should    be    rendered    willioul     profil. 

31.  San    DioKO    Water    Co.    v.    S:u.  n  ir,4  U.  vS.  578. 

Diego,  118  Cal.  556,  38  L.  R.  A.  460.  "^83  U.  S.   79. 

■«' Dow    V.    Bei'lolman,    125    U.    S. 
680. 


§554  KEDUCTIOA   OF  CHAKCiEa.  581 

he  is  not  at  liberty  to  complain  .'  While  we  have  said  again 
and  again  that  one  volunteering  to  do  such  service  cannot 
be  compelled  to  expose  his  property  to  confiscation,  that  he 
cannot  be  compelled  to  submit  its  use  to  such  rates  as  do 
not  pay  the  expenses  of  the  work,  and  therefore  create  a 
constantly  increasing  debt  which  ultimately  works  its  ap- 
propriation, still  is  there  not  force  in  the  suggestion  that 
as  the  state  may  do  the  work  without  profit,  if  he  voluntarily 
undertakes  to  act  for  the  state  he  must  submit  to  a  like  deter- 
mination as  to  the  paramount  interests  of  the  public?"  A 
tentative  suggestion  of  this  character  must  not,  of  course,  be 
taken  as  authoritative,  and  it  is  also  important  to  note  that 
the  part  of  the  opinion  dealing  with  the  question  of  reason- 
ableness of  rates  does  not  represent  the  opinion  of  the  court, 
as  six  of  the  justices  concurred  in  the  decision  only  upon 
another  ground.'*^ 

Moreover  in  contrast  to  the  statement  made  in  the  Sand- 
ford  case  that  the  corporation  is  not  entitled  as  a  matter  of 
right  to  realise  a  given  per  cent  upon  its  capital  stock,  should 
be  placed  other  statements  to  be  found  in  the  case  of  Smyth 
V.  Ames,  to  the  effect  that  "the  corporation  may  not  be 
required  to  use  its  property  for  the  benefit  of  the  public  with- 
out receiving  just  compensation  for  the  services  rendered  by 
it,"^^  and  that  "what  the  company  is  entitled  to  ask  is  a  fair 
return  upon  the  value  of  that  which  it  employs  for  the  public 
convenience."^^  These  statements  were  made  with  reference 
to  a  public  service  company  and  of  course  outweigh  the  obiter 
dictum  of  an  individual  judge.  It  remains  to  be  determined 
whether  or  not  anything  short  of  the  current  rate  of  interest 
can  be  regarded  as  a  fair  return.  There  is  no  doubt  that  the 
settlement  of  the  problem  of  fair  value  and  fair  return  would 
be  greatly  aided  by  legislation  controlling  the  capitalisation 
and  the  accounting  systems  of  public  service  companies.'^'^ 

43  Note.— As      to      public      emer-  tion  of  the  proper  committee  of  the 

gencies,   see  Art.  46  of  the  German  Federal  Council,  for  carrj-ing  grain. 

Constitution :    "In  eases  of  distress,  flour,  and  potatoes,  uliich,  however, 

especially  in  case  of  scarcity  of  the  may   not   be   lower   than    the   lowest 

necessaries  of  life,  the  railroad  com-  tariff  of  the  road  for  carrying  raw 

panics  are  held  to  make  a  specially  material. ' ' 

low   temporary   tariff   corresponding  •**  169  U.  S.   466,   546. 

to  the  needs  of  the  emergency,  to  be  *^  169  U.  S.  466,  547. 

fixed   by   the  Emperor  upon   sugges-  ^o  The     Street     Kailroad     Act     of 


582  CONFISCATORY    LEGISLATION.  §  555 

D.     IMPAIRMENT  OF  THE  OBLIGATION   OF   CONTRACTS. 

§§  555-560. 

§  555.  Police  power  restricted  with  reference  to  existing 
contracts. — The  right  springing  from  the  obligation  of  a  law- 
ful contract  has  received  a  special  protection  through  the 
prohibition  contained  in  the  federal  constitution  and  reiter- 
ated in  many  state  constitutions,  of  laws  impairing  the  obliga- 
tion of  contracts. 

The  extent  to  which  this  clause  restricts  the  operation  of 
the  police  power  has  never  been  precisely  formulated.  That 
it  does  restrict  it  can  easily  be  shown  by  a  simple  illustration : 

The  rate  of  interest  may  be  generally  reduced  from  seven 
to  six  per  cent,  but  existing  contractual  obligations^"  at  the 
higher  rate,  however  long  they  may  have  to  run,  remain  in 
force  until  discharged.'*^ 

So  there  can  also  be  no  reasonable  doubt  that  while  a  rail- 
road corporation  is  liable  to  have  its  traffic  rates  reduced  by 
the  legislature  in  the  interest  of  the  public  who  have  occasion 
to  use  its  facilities,  yet  if  the  railroad  company  has  made  a 
contract  with  a  shipper  at  rates  which,  according  to  the  tariff 
standard,  are  exorbitant,  the  legislature  can  afford  no  relief. 

Thus*  it  appears  that  the  earning  power  of  capital  may  or 
may  not  be  validly  impaired,  according  as  it  has  not  or  has 
been  fixed  by  entering  into  definite  contracts.  The  legisla- 
ture may  operate  upon  future  contracts  but  not  upon  those 
already  in  existence. 

This  difference  is  a  matter  of  constitutional  policy:  a  con- 
tract is,  as  a  rule,  of  limited  duration,  and  in  course  of  time 
the  debtor  will  be  discharged  from  its  operation.     His  liard- 

fllinois  of  1903,  in  giving  cities  the  is  made   for   dividends  on  stock;    it 

jiower  to  fix  rates  and  charges,  adds,  is     apparently     assumed     that     the 

"but   such   rates   and   charges   shall  whole  cost  or  value  of  the  plant  will 

he  high  enough  io  j)ro(luce  a  revenue  be  represented  by  bonds, 

sufficient  to  bear  all  costs  of  main-  47  Not   judgments;    see   Morley   v. 

tenance  and  operation  and  to  meet  Lake  Shore  &  M.  S.  R.  Co.,   146  U. 

interest  diarges  on  all  bonds  or  cer-  S.  102. 

lificates    issued    on    account    of    such  ■•«  Hubbard   v.   Callahan,   42   Conn. 

i;iih\;iys,  and  In  permit  the  accumu-  524;    Myrick    v.   Rattle,   5  Fla.   345; 

lation  of  a  surplus  or  sinking  fund  St\irges   v.   Crowninshield,   4  Wheat, 

that   shall    be   sufTicient   to   meet   all  122,  207;   cnnira,  .Tustinian's  Codex 

such     outstanding     lionds     or    certi-  6,   32:    27;    Lasalle,   System    der   er- 

ficates  at  maturity."     No  provision  worbenen  Rcchte,  I  230,  233. 


S  550        TiMi^AlRMENT  OF  OBLIGATION  OF  CONTRACTS.  583 

•ship  is  temporary,  and  as  he  has  undergone  it  voluntarily  it  is 
deemed  better  (provided  the  contract  is  not  immoral  or  in  its 
inception  contrary  to  public  policy)  that  he  should  suffer, 
than  that  the  faith  in  the  security  of  promises  should  he 
shaken. 

§  556.  Impairment  forbidden  only  if  in  interest  of  party 
obligated.^" — It  seems,  however,  that  the  constitutional  pro- 
hibition applies  only  to  laws  impairing  the  obligation  of  the 
contract  for  the  benefit  of  the  party  obligated.  It  is  not  an 
objection  to  an  otherwise  valid  police  regulation  that  it  makes 
the  performance  of  a  contract  valid  in  its  inception  impossible. 
Thus  the  power  of  the  state  to  regulate  railroad  rates  is  not 
defeated  by  the  fact  that  the  railroad  company  has  made  a 
contract  with  another  railroad  company  that  it  will  not  charge 
less  than  the  rate  fixed  by  an  existing  statute,^*^  or  that  the 
railroad  company  has  incurred  indebtedness  upon  the  basis 
of  an  earning  capacity  calculated  on  higher  rateSj'^i  and  the 
mere  fact  that  a  high  rate  of  interest  on  bonds  cannot  be  paid 
under  a  proposed  tariff,  would  not  make  that  tariff  unreason- 
able. 

The  regulation  by  the  legislature  of  the  pressure  of  natural 
gas  in  pipes  was  held  valid  although  it  affected  existing  con- 
tracts,^ and  it  has  been  held  that  the  operation  of  an  ordinance 
establishing  fire  limits  is  not  affected  by  an  existing  contract 
to  erect  a  frame  house  on  premises  covered  by  the  ordinance, 
although  lumber  has  been  bought  on  the  faith  of  the  con- 
tract.2  So  the  validity  of  an  act  requiring  a  railroad  company 
to  elevate  or  depress  its  tracks  would  not  be  affected  by  the 
existence  of  contracts  with  adjoining  owners  for  track  con- 
nections.^ 

Contrary  to  this  doctrine,  it  was  formerly  held  in  Missouri 
and  Kentucky  that  the  power  of  the  state  to  prohibit  or  revoke 

49    See,  also,  §§  584-586.  Gas  &  Oil  Co.,  128  Ind.  555,  V2  L.  R. 

r.o  Buffalo  East  Side  Street  R.  Co.  A.  652. 

V.  Buffalo  Street  R.  Co.,  Ill  N.  Y.  2  Salem  v.  Manyes,  123  Mass.  372 ; 

132,  2  L.  R.  A.  384.  Knoxville   v.   Bird,    12   Lea    (Teuu.) 

51  Chicago,  B.  &  Q.  E.  Co.  v.  Iowa,  121.     See,  also.  New  York  v.  TTordjc. 

94  IT.  S.  155;  this  point  was  made  in  68  App.  Div.   370,  74  N.   Y.  Suppl. 

New  York  and  New  England  R.  R.  104. 

Co.   V.   Bristol,    151   U.   S.   556,   but  ••!  See  Branson  v.  Philadelphia,  47 

not  considered  by  the  court.  Pa.  St.  329. 

1  Jamieson     v.     Indiana     Natural 


584  COKFISCATOEY    LEGISLATION.  §  557 

lottery  grants  eoiild  not  be  so  exercised  as  to  defeat  rights 
of  purchasers  or  lenders  upon  the  faith  of  the  franchise, 
especially  when  the  sale  of  the  franchise  had  been  expressly 
authorised;^  but  the  United  States  Supreme  Court  has  hold 
that  the  abrogation  of  monopolies  is  valid  notwithstanding 
such  contracts.-'^  If,  indeed,  the  grantees  of  a  lottery  fran- 
chise can  be  deprived  of  rights  for  which  they  have  paid,  it 
follows  logically  that  those  claiming  under  them  must  be 
equally  unprotected. 
^  Undoubtedly  in  all  these  cases  the  obligation  of  a  contract 
is  impaired,  but  it  is  not  impaired  in  order  to  confer  a  benefit 
upon  the  obligor  or  debtor.  The  principle  is  that  a  person  can- 
Inot,  by  entering  into  a  contract,  impair  the  power  which  the 
state  must  have  for  the  protection  of  peace,  safety,  health  and 
morals.  If  this  were  not  so,  an  owner  of  property  who  appre- 
hended that  a  police  regulation  would  be  passed  affecting  his 
property,  would  have  it  in  his  power  to  nullify  its  effect  in 
advance,  by  making  contracts  inconsistent  with  its  enforce- 
ment.^ That  the  relief  from  the  contractual  obligation  indi- 
vidually benefits  the  party  previously  bound  by  it,  is  no  objec- 
tion to  the  validity  of  the  statute,  provided  such  relief  is  not 
the  primary  object  of  the  law.  For  this  purpose  laws  which 
impair  existing  contracts  as  being  prejudicial  to  public  safety 
and  morals  should  be  treated  as  not  enacted  for  the  pri- 
mary benefit  of  the  party  bound.  Upon  this  theory  a  law 
limiting  hours  of  labor  in  the  interest  of  safety  or  health  may 
jipply  to  existing  contracts,  although  it  is  within  the  legisla- 
tive power  to  exempt  existing  contracts  from  its  operation." 
Strong  considerations  of  public  policy  require  the  exemption 
of  existing  contracts,  and  this  policy  is  raised  into  a  principle 
of  constitutional  law  when  the  object  of  the  statute  is  relief 
from  pecuniary  or  ccoTioinic  burdens. 

5;  557.     Legislation  for  the  relief  of  debtors.— Th(>   federal 
(•(institution  renders  impossible  many  of  the  devices  formerly 

•  Stato    V.    TTawthorn,    0    Mo.    389,  "  Tliis   was   pointod    out    in    Peoplo 

1H45;    State   v.    Miller,   50    Mo.    129,  v.  TTawIoy,  3  Mich.  :VM). 

1872;   Gregory 'fi  Executrix  v.  Triia-  ^  ]{(,    Ten    Hour    Law    for    Street 

teen  of  Shelby  Collejje,  2  Met.  (Ky.)  Uiiiln.ad    Corporations    (R.    T.),    .'54 

r,H9,   lHr,9.  AM.  ()02. 

•'•  DouuiaH  V.   Kentucky,    IG.S   U.   S. 
488. 


j;  35S  RETEOSPECTIVE    LEGAL  TENDER  LAWS.  585 

resorted  to  by  the  sovereign  power  to  relieve  debtors  from 
existing  obligations,  such  as  the  annulment  of  existing  debts, 
the  retroactive  reduction  of  the  rate  of  interest  on  loans,^ 
all  stay  and  respite  laws,''  and  the  retroactive  operation  of 
homestead  and  exemption  laws.^'^  Nor  is  it  within  the  power 
of  the  states  to  enact  insolvent  laws  operating  on  debts  previ- 
ously incurred.^  ^  But  in  the  absence  of  a  specific  prohibition 
the  relief  of  debtors  by  bankruptcy  legislation  is  commonly 
r-egarded  as  a  legitimate  exercise  of  sovereign  power,  and  the 
retroactive  operation  of  the  federal  bankruptcy  acts  has  not 
been  questioned.^ - 

§  558.  Retrospective  legal  tender  laws.— Another  device  of 
relieving  debtors  consists  in  legislation  which  allows  existing 
obligations  to  be  discharged  in  a  currency  inferior  to  that 
which  was  legal  tender  at  the  time  the  obligations  Avere 
incurred.  It  has  been  maintained  by  the  United  States 
Supreme  Court  in  the  Legal  Tender  Cases^^  n^^i  such  legisla- 
tion does  not  impair  the  obligation  of  contracts,  since  parties 
are  supposed  to  contract  with  reference  to  the  continuing 
power  of  Congress  to  determine  what  shall  be  money.  But 
the  very  idea  of  a  law  impairing  the  obligation  of  contracts 
presupposes  that  parties  do  not  contract  subject  to  the  expecta- 
tion of  any  and  every  change  in  governmental  regulations. 
"If  one  law  enters  into  all  subsequent  contracts,  so  does  every 
other  law  which  relates  to  the  subject.  A  legislative  act,  then, 
declaring  that  all  contracts  should  be  subject  to  legislative 
control,  and  should  be  discharged  as  the  legislature  might 
prescribe,  would  become  a  component  part  of  every  contract 
and  be  one  of  its  conditions.    Thus,  one  of  the  most  important 

8  See  §  .555,  supra.  34 ;    Lapsley   v.    Brashear,   4    Littell 

9  Barnes    v.    Barnes,    8    Jones    L.     47. 

(N.    C.)     366,     1861;     Billmeyer    v.  n  Sturges  v.  Crowninshield,  4  Wh. 

Evans,   40   Pa.   St.   321,   1861,  as  to  122,  1819. 

lettres   de    repit    and    moratoria   see  i-  The    Constitution    of    the    Con- 

Rescher  I  286;   Just.  Cod.  1,  19:    2.  federate  States   (VIII,  4),  however, 

10  Gunn  v.  Barry,  15  Wall.  610.  provided,  in  giving  power  to  estab- 
For  another  illustration  of  devices  lish  uniform  laws  on  the  subject  of 
to  aid  debtors  see  the  relief  legisla-  bankruptcies:  "but  no  law  of  Con- 
tion  of  Kentucky  of  1S18,  the  judi-  gres>.  shall  discharge  any  debt  con- 
cial  condemnation  of  which  was  tracted  before  the  passage  of  the 
sought  to  be  nullified  by  legislative  same." 

action;   Blair  v.   Williams,   4  Littell  i-?  12  Wall,  457. 


586  CONFISCATOEY    LEGISLATION.  ^  559 

features  iu  the  constitution  of  the  United  States,  one  Avhieh 
the  state  of  the  times  most  urgently  required,  one  on  which 
the  good  and  the  wise  reposed  confidently  for  securing  the 
prosperity  and  harmony  of  our  citizens,  would  lie  prostrate, 
and  be  construed  into  an  inanimate,  inoperative,  unmeaning 
clause.  "^^ 

It  is  a  technical  and  specious  argument  to  say  that  con- 
tracts for  the  paj-ment  of  money  are  engagements  to  pay  with 
lawful  money  of  the  United  States,  that  Congress  '  is  em- 
powered to  regulate  that  money,  and  that  therefore  every 
change  in  money  is  within  the  contemplation  of  the  parties. 
The  controlling  factor  is  that  a  retrospective  legal  tender  act 
directly  alters  the  substance  of  contractual  obligations,  giv- 
ing to  the  same  words  a  different  content.  The  dissenting- 
judges  in  Hepburn  v.  Griswold,^-'*  whose  opinions  later  on 
prevailed  in  the  Legal  Tender  Cases,  frankly  recognised  this. 
Justice  iMiller  saying:  "Undoubtedly  it  is  a  law  impairing 
the  obligation  of  contracts  made  before  its  passage.  But 
while  the  Constitution  forbids  the  States  to  pass  such  laws  it 
does  not  forbid  Congress.""  It  is  therefore  impo.ssible  to  ac- 
cede to  the  statement  iinulc  in  Ihe  L(>gal  Tender  Cases  that 
"there  is  no  well  founded  distinction  to  be  made  between  the 
constitutional  validity  of  an  act  of  Congress  decbaring  Treas- 
ury notes  a  legal  tender  for  the  payment  of  debts  contracted 
after  its  passage,  and  that  of  an  act  making  them  a  legal  ten- 
der for  the  discharge  of  all  debts,  as  well  those  incurred  before 
as  those  made  after  its  enactment."'" 

§559.  Contracts  to  pay  in  specific  kind  of  money.— In  ar- 
guing that  retrospective  legal  tender  acts  did  not  impaii-  the 
obligation  of  contracts,  Justice  Strong  was  careful  to  add: 
"We  speak  now  of  contracts  to  pay  money  generally,  not  con- 
tracts to  pay  some  specnfically  defined  species  of  money." 
Contracts  of  the  lattei-  kind  have  been  held  to  be  eiiloicenlile 
;ii*eof(ling  to  their  lei'nis.  jind  not  intended  to  be  covereil  by  the 
legjil  tender  acts.''  Should  ;i  legal  ten<ler  ae(  undertake  to 
opecatc  npori  contracts  of  that    kin<l  existing  at   the  time  ol"  its 

'•»  MurHhall,    Cli.    .1.,    in    O^.lcii    \.  'rii'l>ilcni-k    v.    Wilson,    ll'    Wall.   (IST. 

SamiderH,  12  Wh.  213,  .3.30.  As   to   loKiHlation    of   California   and 

"■'  H  Wall.  (50.3.  Nevada     cxjircsHly    lo{jaIisin>j    sjx'cii' 

11  1L'   Wall.  4.'")7.  r.30.  crntraids,    sco    R.     T'.    Brcckinridfre, 

iTBroHHon  V.   K.kIch,  7   Wall.  -'Lli) ;  Legal  Tender,  p.  15G. 


§  560  SCALING  LAWS.  587 

enactment,  it  would  beyond  any  doubt  impair  the  obligation 
of  sueli  contracts. 

§  560.  Scaling  laws.— After  the  downfall  of  the  Confed- 
eracy, statutes  were  enacted  in  the  Southern  states  providing 
that  in  actions  to  enforce  contracts  entered  into  during  the 
war,  evidence  might  be  given  as  to  the  understanding  of  the 
parties  regarding  the  currency  in  which  they  were  to  be  per- 
formed, and  judgment  should  be  given  only  for  the  true  vahic 
of  the  treasury  notes  at  the  time  of  the  contract,  as  mea.sured 
by  lawful  money  of  the  United  States.  These  statutes  were; 
upheld  by  the  United  States  Supreme  Court.^*^  But  it  was 
held  that  an  alternative  provision  to  the  effect  that  judgment 
might  be  given  for  the  true  value  of  the  propert}'  sold  or  the 
fair  rent  or  hire  of  it,  was  invalid,  as  substituting  for  the  stipu- 
lations of  the  parties  a  new  and  different  contract  never  made 
by  them.^^ 

18  Eflfinger   v.   Kenney,    115   U.    S.  ginia   see   Faw   v.   IMarsteller,   2   Cr. 

566.     See,  also.  Cook  v.  Lillo,  103  U.  10. 

S.   793;   Stewart  v.  Salamon,  94  U.  ^i' Wilmington  &c,  R.  Co.  v.  King, 

S.  434;  Thorington  v.  Smith,  8  Wall.  91  U.  S.  3. 
1.    For  an  early  scaling  law  of  Vir- 


CHAPTER  5XVI. 

PUBLIC  GRANTS  AND  LICENSES. 

§  561.  In  general.— The  clause  of  the  federal  constitution 
forbidding  states  to  pass  laws  impairing  the  obligation  of 
contracts  applies  to  contracts  made  by  the  state  itself.  In  the 
first  case  in  which  legislation  was  annulled  as  impairing  such 
a  contract,  the  contract  was  in  reality  an  executed  grant.^  A 
right  of  this  character  would  perhaps  now  be  more  aptly  pro- 
tected under  the  Fourteenth  Amendment.  In  the  case  of  New 
Jersey  v.  "Wilson,-  a  statutory  exemption  from  taxation,  and 
in  Trustees  of  Dartmouth  College  v.  Woodward^  the  charter 
of  a  corporation,  was  held  to  be  a  contract.  In  order  to  invoke 
federal  protection  against  state  legislation  not  of  a  penal  char- 
acter, the  aggrieved  parties  had  before  the  Fourteenth  Amend- 
ment to  show  that  the  alleged  right  which  was  menaced  by 
the  state,  was  in  the  nature  of  a  contract,  and  hence  the  doc- 
trine of  vested  rights  has  become  closely  associated  Avith  the 
theory  of  contracts. 

Wherever  then  a  claim  is  made  that  a  right  has  l)een  granted 
by  positive  statute  or  ordinance,  and  legislation  is  passed  which 
is  hostile  to  the  claim,  the  question  must  be :  is  the  subject- 
matter  (franchise,  license,  privilege,  or  exemption)  of  such 
a  nature  that  the  state  can  bind  itself  with  regard  to  it  by  a 
contract"?  and  if  it  is  hehl  that  the  state  can  make  a  binding 
contract  with  regard  to  it,  the  further  question  may  be:  has 
it  made  such  a  contract?  which  may  be  a  (piestion  of  intent, 
or  of  consideration.  Tn  the  case  of  municipal  action  it  must 
also  be  asked  whctlirr  power  to  make  a  contract  Avas  dele- 
gated by  statute. 

The  following  jin-  llic  |)fiiicip;il  classes  of  rights  resting 
upon  positive  grant  :  liiccnsi's  to  |)ni'suc  ;i  business  prejudicial 
to  safety  or  nioi-ils;  nseCul  but  olVensive  und(U'takings  eai-ried 
on  umlei'  license;  cxeiiipl  ions  IVom  personal  services.  IVom 
li;iliility  I'oi'  (lebts.  ••Mill  IVom  taxation:  corporate  powers  and 
privileges;  and  licenses  to  use  public  |)i-operty  (street  and 
orivr  fi-ancliises). 

1  I'lrlcliiT    V.    I'cik.    C,    rnincli    .S7.  :"1  Wheat.  518. 

-•7  r'raiwli   Kil. 

588 


is  562  LICENSE  TO  PURSUE   DANGEROUS  BUSINESS.  589 

LICENSE  TO  PURSUE  A  BUSINESS     PREJUDICIAL  TO  SAFETY 

OR  MORALS.     §§  562-564. 

§  562.  Statement  of  principle.— It  has  been  shown  before 
that  the  establishment  or  eontiuuance  of  a  business  may  be 
prohibited,  if  it  is  prejudicial  to  safety  or  morals.  A  business 
of  this  kind  may  be  tolerated,  because  it  meets  a  demand  so 
strong  that  it  cannot  be  effectuall}'  suppressed,  and  because 
the  state  may  desire  to  minimise  the  evil  effects  of  the  business 
by  placing  it  under  control,  and  issuing  permits  or  licenses 
for  its  conduct. 

How  does  such  charter  or  license  affect  the  power  to  pro- 
hibit ?  While  it  is  in  force,  the  business,  if  properly  conducted, 
cannot  be  an  indictable  nuisance ;  but  does  the  license  consti- 
tute a  contract  or  a  vested  right  that  cannot  be  impaired  by 
subsequent  legislation  ? 

The  preponderance  of  opinion  is  that  such  a  license  is  not 
constitutionally  protected. 

§  563.  Lotteries.— This  principle  has  perhaps  been  laid  down 
most  unequivocally  with  regard  to  lotteries.  A  lottery  license 
not  yet  acted  upon  had  been  declared  revocable  in  ^Missouri 
in  1844.'*  In  1850  the  Supreme  Court  of  the  United  States 
held  that  subsequent  legislation  might  place  a  time  limit  upon 
a  lottery  privilege  previously  granted,  especially  as  the  first 
grant  had  been  without  consideration  and  had  probably  be- 
come inoperative  by  non-user.^  In  Alabama  a  statute  estab- 
lishing a  lottery  was  at  one  time  held  to  be  a  contract,  but  was 
later  on  held  to  be  unconstitutional.^  Lottery  privileges  were 
held  to  be  revocable  in  North  Carolina"  and  in  Mississippi,  in 
the  latter  state  although  a  bonus  had  been  paid  which  was 
not  returned,  the  court  admitting  the  bad  faith,  but  stating 
that  it  had  no  concern  with  this.^  The  doctrine  was  eon- 
firmed  by  the  United  States  Supreme  Court  in  1879.'^  A 
eliarter  had  been  granted  authorising  a  company  to  conduct 

4  Freleigh  v.   State,   8   Mo.  606.  Mississippi    Society    of    Arts    &e.    v. 

•'">  Phalen  v.  Virginia,  8  How.  163.  Musgrove,  44  Miss.  820,  7  Am.  Rep. 

« See  Boyd  v.  State,  46  Ala.  329 ;  723,    the    bonus    had    been    tendered 

Boyd    V.    Alabama,    94    U.    S.    645,  but    refused,    and    it    was    therefore 

1877.  l\eld  that  no  rights  had  vested  under 

"  State   V.   Morris,   77   N.    C.   512,  the  statutory  grant. 

1877.  0  Stone   v.    Mississippi-    KM    V.    S. 

8  Moore  v.  State,  48  Miss.  147.    In  814. 


590  PUBLIC   GEANT   AND  LICENSES.  §  563 

a  lottery  in  the  state  for  twentj'-five  years,  in  return  for  which 
the  company  had  paid  a  lump  sum  and  had  agreed  to  make 
annual  payments,  a  number  of  which  the  state  had  received. 
Notwithstanding  this,  the  prohibition  of  the  sale  of  lottery 
tickets,  without  compensation  to  the  company,  was  upheld. 
But  it  also  appeared  that  for  forty-five  years  prior  to  the  grant 
of  the  charter  the  conducting  of  lotteries  had  been  prohibited 
in  the  state  and  punished  as  gambling.  A  year  after  the  grant 
of  the  charter  the  people  by  a  new  constitution  reinstated  the 
prohibition.  Under  these  circumstances,  the  court  was  of 
the  opinion  that  it  was  not  within  the  power  of  the  legislature 
to  bargain  away  the  moral  interests  of  the  people,  and  the 
charter  was  held  not  to  be  a  contract.  "Any  one,  therefore, 
who  accepts  a  lottery  charter,  does  so  with  the  implied  un- 
derstanding that  the  people,  in  their  sovereign  capacity  and 
through  their  properly  constituted  agencies,  may  resume  it 
at  any  time  when  the  public  good  shall  require,  and  this 
whether  it  be  paid  for  or  not.  All  that  one  can  get  by  such 
a  charter  is  a  suspension  of  certain  governmental  rights  in 
his  favor,  subject  to  withdrawal  at  will.  He  has,  in  legal 
effect,  nothing  more  than  a  license  to  continue  on  the  terms 
named  for  the  specified  time,  unless  sooner  abrogated  by  the 
sovereign  power  of  the  state.  It  is  a  permit,  good  as  against 
existing  laws,  but  subject  to  future  legislative  or  constitutional 
control  or  withdrawal." 

This  decision  has  been  accepted  as  settling  the  principle  that 
a  lottery  grant  cannot  constitute  a  contract  or  a  vested  right 
under  the  federal  constitution,  irrespective  of  any  particular 
('([uities,  and  notwithstanding  the  fact  that  there  have  been 
dealings  upon  the  faith  of  the  grant. "^  Stone  v.  Mississippi 
has  been  followed  in  yirginia,^^  and  in  Indiana  has  led  to  the 
reversal  of  earlier  decisions  protecting  rights  under  lottery 
grants.'  2 

'riir  ICnglish  art  of  169S  for  tlic  suppression  ol"  private  lot- 
tci-ics  assumed  Hint  lliey  were  i)ublic  nuisances,  juid  that  the 
licenses  under  which  they  were  conducted  were  void.^^ 

K' DouKliis  V.  Kf'iiturky,   IflS  U.  S.  n.Tustico    v.     Commonwealth,     81 

488,     overruling     earlier     Kentucky     Va.  209. 

floctrino  ('luinciatoil  in  fJrcgory'H  i-;KoIhiin  v.  State,  fiO  IikI.  .188, 
l^xtrx.  V.  Trustp/>H  of  Rliclliy  Cnllcjro,  coinj).  w.  Sfate  v.  Woodward,  S9  Ind. 
J  Met.  089.  11(1. 

i-i  Id  .■iiid    1  I    W'illiiim    1  I  I,  f:i|>.    17. 


§  5G4  LIQUOR    LICENSES.  591 

^564.  Liquor  licenses.  — A  license  to  sell  liquor  is  held  not 
to  be  a  contract,  and  may  therefore,  though  unexpired,  be  re- 
voked by  prohibitory  legislation.  In  1852  the  Supreme  Court 
of  Ohio  refused  to  interpret  a  statute  as  revoking  unexpired 
licenses  for  which  payment  had  been  made,  intimating  that 
such  revocation,  though  not  beyond  the  legislative  power, 
would  be  an  act  of  bad  faith.^"*  In  1853  it  was  said  in  a  New 
Hampshire  case  that  the  revocation  of  an  unexpired  license 
would  be  unconstitutional,^^  but  the  determination  of  the 
question  was  not  essential  to  the  disposition  of  the  case.  In 
1856,  however,  it  was  held  in  ]\Iassachusetts  that  a  license  to 
sell  liquor  did  not  create  a  contract,  but  that  its  effect  is  only 
to  permit  a  person  to  carry  on  the  trade  under  certain  regu- 
lations, and  to  exempt  him  from  the  penalties  provided  for 
unlawful  sales. ^^ 

This  doctrine  has  since  been  accepted  in  all  states  in  which 
the  question  has  arisen,  even  in  New  Hampshire,  where  the 
contrary  opinion  had  been  formerly  expressed.'"  The  Su- 
preme Court  of  the  United  States  would  probably  take  the 
same  position,  although  the  precise  question  has  not  come  be- 
fore it.i^ 

The  doctrine  represents  an  extreme  application  of  the  theory 
that  the  state  cannot  by  any  act  of  its  own  hamper  or  burden 
the  future  exercise  of  the  police  poAver.  As  the  law  noAv 
stands,  every  license  to  sell  liquor  is  revocable  by  subsequent 
law,  whether  so  stated  in  terms  or  not,  and  the  legislature  has 
no  constitutional  power  to  make  the  license  a  vested  right. 
"If  the  act  of  1857  had  declared  that  licenses  under  it  should 
be  irrevocable  the  legislatures  of  subsequent  years  would  not 
have  been  held  by  the  declaration.  "^^     It  is,  however,  to  be 

i4Hirn  v.  State,  1  Oh.  St.  15.  S.  E.  302;  Pleuler  v.  State,  11  Neb. 

15  Adams    v.    Hackett,    27    N.    H.  .547,    575.      Also    MetropoL    Bd.    of 

289.  Excise  v.  Barrie,  34  N.  Y.  657,  and 

icCalder  v.  Kurby,  5  Gray  597.  La   Croix    v.    County    Commissioners 

17  State  V.  Holmes,  38  N.  H.  225 ;  of   Fairfield   County,   50   Conn.    321, 

McKinney    v.    Salem,    77    Ind.    213;  where  however  the  licenses  were  by 

Moore  v.  Indianapolis,  120  Ind.  483 ;  their  terms  revocable. 

Fell  V.  State,  42  Md.  71 ;  Columbus  is  See  Beer  Co.  v.  Massachusetts, 

City    V.     Cutcorap,     61     Iowa     672;  i»7  U.  S.  25;  Mugler  v.  Kansas,  123 

Powell  V.  State,  69  Ala.  10;   Brown  U.  S.  623. 

V.    State,    82    Ga.    224;     Melton    v.  lo  Metropolitan    Board    of    Excise 

Mayor  of  Moultrie,  114  Ga.  462,  40  v.  Barrie,  34  N.  Y.  657. 


592  PUBLIC   GEANT   AND   LICENSES.  §  565 

noted  that  the  New  York  liquor  tax  law  of  1896  contains  an 
express  saving  of  existing  licenses.^^ 

Where  holders  of  licenses  are  exempted  from  the  operation 
of  the  new  act  for  a  certain  period,  they  cannot,  under  the  pre- 
vailing doctrine,  complain  that  the  period  was  too  short  to 
enable  them  to  dispose  of  the  stock  on  hand.-^ 

USEFUL    BUT    OFFENSIVE    UNDEETAKINGS   CARRIED   ON 

UNDER    LICENSE.22 

§  565.  Cemeteries,  markets,  etc.— The  same  view  has  been 
taken  of  licenses  and  other  acts  claimed  as  sanctioning  estab- 
lishments, undertakings  and  arrangements  prejudicial  to  pub- 
lic health  and  comfort.  Thus  the  theory  that  a  charter  of  a 
corporation  is  protected  as  a  contract  is  inapplicable  to  new 
regulations  or  restrictions  imposed  in  the  interest  of  public 
health  or  safety.^-^  A  deed  of  a  city  conveying  land  for  a 
cemetery  with  covenant  of  quiet  enjoyment  does  not  prevent 
the  subsequent  enactment  of  an  ordinance  prohibiting  the 
interment  of  the  dead  within  the  city  limits -,2^  but  here  the 
first  conveyance  was  hardly  in  the  nature  of  a  license.  So  it 
was  held  in  Virginia  that  the  city  might  direct  the  removal  of 
a  powder  magazine  after  it  had  conveyed  the  ground  for  that 
express  purpose.^'''  In  IMassachusetts  a  license  from  the  board 
of  aldermen  to  maintain  a  slaughter  house  is  no  protection 
against  an  order  of  the  board  of  health  prohibiting  the  carry- 
ing on  of  the  business.^*'  And  in  Louisiana^"  a  market  legally 
established  may  be  suppressed  at  any  time,  if  it  is  deemed  ex- 
pedient to  confine  the  sale  of  meats  to  public  markets.  The 
same  has  been  held  in  that  state  with  regard  to  slaughter 
h(»uses.28 

iioChap.  29  of  General  Laws,  §  4.  purposes    cannot    be    destroyed    by 

21  So  held  with  rej^urd  to  the  busi-  legislative  authority,   where  there  is 

ness   of   Belling    pistols    in    State    v.  no    pretense    of    sanitary    necessity. 

Burgoyne,    7    Lea    (75    Tenn.)    173,  Stockton   v.  City  of   Newark,  42   N. 

4(1  A.M.  Rep.  60.  .T.  Eq.  531,  9  Atl.  203. 

•--.:  See,  also,  §§   17()- 179,  529-533.  i:.-,  Davonport     v.     Eichninnd     City, 

2.'t  Thorpe   v.    Rutland    &c.    R.    Co..  81   Va.  (530. 

27   Vt.    140;    Northwestern    Fertilis-  20  Cambridge     v.     Trelegan.      isl 

ing  Comj)any  v.   Hyde   Park,   97    U.  Mass.  505,  64  N.  E.  204. 

S.  659.  -^  New  Orleans  v.  Stafford,  27  La. 

-•4  Urirk     I'rcshyterian     Church     v.  Ann.    417;    New    Orleans    v.    Faber, 

Mayor,  5  Cow.  538;  Coates  v.  Mayor,  1"5  I -a.  208,  53  L.  K'.  A.  165. 

7  Cow.  585.  ■'"  Villavaso    v.    Barf  hct,     39    La. 

Tlowevcr,    a    trust    accf'ijfr'd    by    a  Ann.  247,    I    So.  599. 
city   to   hfild    property    for   ccmf'tcry 


§560  TKADJ:    NUISANCES.— KXEMKnONS.  594 

The  cases  in  which  ordiuancfs  uU(.'iii]jliny  tj  suppress  ex- 
isting establishments  were  declared  invalid  rested  on  special 
circumstances.  So  it  was  held  in  Louisiana  that  a  munici- 
pality having  given  its  consent  to  the  location  of  a  cemetery 
established  under  statutory  authority  could  not  shortly  there- 
after prohibit  cemeteries  as  nuisances  ;2'J  and  in  New  York  a 
license  to  erect  a  frame  building  was  declared  irrepealable 
after  construction  commenced ;  but  the  repealing  ordinance 
was  held  not  to  be  within  the  delegated  power  of  the  city,  nor 
lo  have  been  enacted  in  the  exercise  of  the  police  power. •^" 

In  the  case  of  trade  nuisances,  as  in  the  case  of  the  liquor 
or  lottery  business,  the  theory  is  that  a  license  cannot  bind  or 
prejudice  the  subsequent  exercise  of  the  police  power.  It 
cannot  be  denied  that  this  theory  may  result  in  practical  in- 
justice to  private  interests.  Note  in  contrast  the  provision  of 
the  German  Trade  Code'^i  which  allows  the  suppression  of 
licensed  establishments  only  on  payment  of  compensation. 

EXEMPTIONS.     §§  566-568. 

§  566.  From  personal  services. — It  is  generally  held  that 
the  state  cannot  bargain  away  its  power  to  call  for  the  ser- 
vices of  its  citizens  when  needed  for  the  public  welfare,  and 
that  therefore  an  exemption  cannot  constitute  an  irrevocable 
right.  Not  even  the  full  performance  of  the  equivalent  for 
which  the  exemption  was  granted  will  protect  the  citizen  from 
its  revocation,32  only  two  states  treating  the  exemption  in 
such  a  case  as  a  vested  right,-^-^  while  in  Georgia  the  statute 
was  interpreted  as  making  by  implication  an  exception  in 
favor  of  those  who  had  earned  their  exemption. 3-*  It  has 
been  admitted  that  the  revocation,  though  valid,  may  consti- 
tute a  breach  of  public  faith. 

§  567.     Exemptions  from  liability  for  debts.— This  matter 


20  New      Orleans      v.      St.      Louis  ^-  Commonwealth      v.      Bird,      12 

Clhurch,  11  La.  Ann.  244.  Mass.     443,     military     service;     Ke 

30 Buffalo    V.    Chadeayne,    134    N.  Scranton,  74  111.  161,  jury  service; 

Y.  163.     In  California  a  permit  for  Bragg  v.  People,  78  111.   328 ;   Dun- 

the  location  of  gas  works,  although  lap    v.    State,     76    Ala.    460,    jury 

work  had  been  commenced,  was  held  service;   Gatlin  v.  Walton,  60  N.  C 

to   yield   to   a   subsequent   ordinance  325,  military  service, 

forbidding  the  erection  and  mainte-  ^^  Ex  parte   Goodin,   67   'Mo.   637, 

nance    of    such   works.      Dobbins    v.  .iury    service;    Zimmer    v.    State,    30 

Los  Angeles,  72  Pae.  970.  Ark.  677. 

31  §  57.  34  Bloom  V.  State,  20  Ga.  443. 

38 


594  PUBLIC   GRANT   AND   LICENSES.  §  568 

does  not  touch  tlie  police  poAver  directly.  It  has  been  held 
that  the  legislature  may  Avitlidraw  the  privilege  of  limited 
liability  from  corporations  as  regards  debts  to  be  incurred  in 
the  future,  one  of  the  arguments  used  being  that  it  is  free 
to  the  stockholders  to  cease  incurring  debts.^^*  This  argument 
is  hardly  satisfactory,  and  it  may  be  urged  that  the  incident 
of  limited  liability  affects  so  vitally  the  value  of  corporate 
shares  as  to  constitute  an  integral  element  in  that  class  of 
property.^*'  Under  a  reserved  power  of  alteration  the  privi- 
lege may  be  withdrawn."' 

The  non-liability  of  a  married  woman's  separate  property 
for  family  expenses  is  very  clearly  only  a  rule  of  law  without 
any  of  the  elements  of  a  vested  right,  and  such  liability  for 
debts  subsequently  incurred  may  be  imposed  at  any  time.^s 
The  same  is  held  with  regard  to  homestead  exemptions.-^"' 

§  568.  Exemptions  from  taxation.  — The  Supreme  Court  of 
the  United  States  held  at  an  early  date  that  such  exemption 
may  constitute  an  irrevoca])le  contract.^"  The  doctrine  has 
been  resisted  by  some  of  the  state  courts,^ ^  and  has  been  to  a 
considerable  extent  interpreted  away  by  subsequent  decisions 
of  the  Supreme  Court,  so  that  now  there  is  a  strong  presump- 
tion against  its  application."*-  It  is  believed  that  the  following 
rules  fairly  summarise  the  present  status  of  the  doctrine: 

1.  An  exemption  contained  in  a  special  charter  may  con- 
stitute a  contract,  if  clearly  expressed,  and  the  contractual 
exemption  may  be  perpetual,  and  extend  to  all  future  ac- 
quisitions, even  such  as  are  made  subsequent ^to  the  repealing 

act.-*"' 

2.  Tlif   rxcniption   reiinircs   a    considcralion    in   order   to  be 

••'r.  Stanley  v.  Stanley,  ilO  Mv.  T.»L  Ills;     l>ittle    v.    Bowers,    17    Vroom 

;io  Morawctz     on     Corporations.     §  X.  •!.  ;>nO. 

j07g_  •jpiioonix    &<■.    Co.    v.    T(>nnossco. 

"Sherman  v.  Smitli.  1  I'.la.k  HsT  ;  161  U.  S.  174:  "II  .annot   )..-  .I.Miie.l 

(iardncr  v.  Hope  Insuraiici-  Co.,  it  H.  thai    tlir  il.'cisions  of  this  courl    ar(! 

\.    194;    Bissell    v.    Heatli,    08    Mi<-li.  sotncwhat  involverl  in  relation  to  this 

^■j2  <pn'stion  of  exemption." 

•iH  Myers  v.   Kield.    I Ki   111.  HO.  '••'St.  Anna's  Asylnm   v.   New  Or- 

:ii'Sce    Century     Digest     Constitu-  leans,  lO.'i  U.  S.  362.     An  exempti.m 

lional   Law,   §  '_'().'').  fi"oni  taxation  was  denied  as  to  stock 

■«'>  New  JcrHoy  v.  Wilson.  7  <'raiicli  issiieil  siihsetpient   1o   the  prohibition 

164    1812.  "f  exemption  \>y  a  new  constitutional 

*i  Brewster    v.    IToii^h.    10    N.    H.  provision.      Bank     of     Commerce    v. 

Tennessee,   16.3  U.  S.  -116. 


^569 


EXEMPTIONS    FROM    TAXATION.  595 


binding  as  a  contract,  and  may  therefore  be  revoked,  if 
granted  to  a  corporation  with  regard  to  property  which  it 
already  holds.-*^  So  also  where  corporate  land  exempt  from 
taxation  is  authorised  to  be  conveyed,  and  the  conveyance  is 
made,  the  exemption  is  lost.-*"* 

3.  "Where  the  state  has  reserved  the  power  to  alter,  amend 
or  revoke  corporate  charters,  the  exemption  from  taxation 
may  be  taken  away  in  the  exercise  of  such  reserved  power^"' 
unless  the  reservation  of  power  is  by  statute  only  and  the  sub- 
sequent act  shows  clearly  the  intent  to  make  a  contract  un- 
affected by  the  right  to  repeal.-*'  But  if  another  payment  is 
made  in  lieu  of  taxes,  the  exemption  cannot  be  revoked  and 
the  continuance  of  paj^ments  be  demanded  at  the  same  time.'**' 

4.  A  general  hnv  granting  exemption  will  be  regarded  as  a 
legislative  gratuity  or  bounty,  freely  revocable  at  any  time.-*'^ 
This  view  was  even  taken  where  the  exemption  \vas  in  con- 
sideration of  public  services  rendered,  some  stress  being  laid 
upon  the  fact  that  the  service  was  compellable,  and  hence 
perhaps  not  a  sufficient  consideration  for  the  exemption. -^'^ 

CORPORATE   POWERS   AND  PRIVILEGES.     §§  569-572. 

i;  569.  Dartmouth  College  doctrine.— The  doctrine  that  a 
corporate  charter  is  a  contract,  together  with  its  modifica- 
tions, has  been  considered  before. ^  In  so  far  as  it  makes  cor- 
])orate  powers  irrevocable  grants,  it  operates  as  an  exemption 
of  the  corporation  from  legislative  regulation  ordinarily  held 
to  be  Avithin  the  police  power;  and  this  is  ('specially  true 
where  the  exemption  is  claimed  for  powers  and  privileges  not 

4-t  Christ    Church    v.    Philadelphia  ■*"  New  Jersey  v.   Yard,   95   U.   S. 

County,  24  How.  300;  University  v.  104. 

People,    99    XT.    S.    309;    Tucker    v.  -ts  Stearns  v.  Minnesota,  179  U.  S. 

Ferguson,  22  Wall.  527;  West  Wis-  223. 

cousin     R.     Co.     v.     Supervisors     of  *'■'  Salt  Company  v.  East  Saginaw, 

Trempealeau    Co.,    93    U.     S.    595;  1.3    Wall.    373;    Welch    v.    Cook,    97 

Grand   Lodge   v.    New    Orleans,    166  U.   S.   541;    People  v.   Roper,   35   N. 

U.  S.  143.  Y.   629;    People   v.   Board   of  Asses- 

•15  Armstrong      v.      Treasurer      of  sors  of  Brooklyn,  84  N.  Y.  610. 

Athens  Co.,  16  Pet.  281,  distinguish-  so  People  v.  Roper,  35  N.  Y.  629. 

iiig  New  Jersey  v.  Wilson,  7  Cranch  For    other    authorities    see    Century 

164;  Lord  V.  Litchfield,  36  Conn.  116,  Digest    Constitutional    Law,    §§    206, 

overruling  earlier  cases.  303,  237,  304. 

•K-'Tomlinson    v.   Jessup,    15   Wall.  i  §§  361-363,  swpro. 
4.54. 


596  PUBLIC  GRANT  AND  LICENSES.  §  570 

peculiar  to  corporate  capacity,  but  merely  relating  to  the 
business  of  the  corporation.  It  is  sufficient  here  to  consider 
how  the  legislative  power  to  regulate  charges  of  public  service 
companies  is  affected  by  charter  or  other  special  provisions 
granting  power  to  make  rates. 

§  570.  Question  vi^hether  contract  or  not.— The  United  States 
Supreme  Court  recognises  that  a  contract  may  be  made  be- 
tween state  or  municipality  and  a  corpoi-ation,  giving  the  latter 
an  irrevocable  right  to  charge  certain  rates.  Thus  where  a 
statute  provided  that  the  rates  of  fare  to  be  charged  by  a 
street  railroad  company  should  be  established  by  agreement 
between  the  company  and  the  municipal  authorities,  and  should 
not  be  increased  without  the  consent  of  such  authorities,  an 
ordinance  reading  "the  rate  of 'fare  for  any  distance  shall  not 
exceed  five  cents  in  any  one  car,  etc.,"  was  held  to  be  an  ir- 
revocable contract,  leaving  no  power  with  the  city  to  reduce 
the  fare  without  the  consent  of  the  company,  and  this  not- 
Avithstanding  the  fact  that  the  ordinance  reserved  to  the  city 
the  right  to  make  such  further  rules,  orders  or  regulations 
as  might  from  time  to  time  be  deemed  necessary  to  protect 
the  interest,  safety,  welfare  or  accommodation  of  the  city  and 
public.2  But  in  other  cases  the  Supreme  Court  has  shown  a 
strong  disposition  to  deny  the  existence  of  a  contract.  So  a 
power  to  fix  rates  by  bye-law  has  been  held  not  to  exchide  leg- 
islative regulation  of  rates  where  it  is  also  provided  that  the 
bye-laws  must  not  be  repugnant  to  the  laws  of  the  state,-^  and 
it  has  been  said  by  a  state  court  that  in  order  to  constitute  a 
contract  there  must  be  an  indication  by  unmistakably  clear 
language  of  a  deliberate  purpose  not  to  interfere  in  all  times 
to  come.'* 

§  571.  Illinois  Water  Rate  Cases.— To  what  lengths  the 
courts  will  go  in  denying  that  the  city  has  a  power  to  make 
a  contract,  or  that  it  has  as  a  matter  of  fact  made  a  contract, 
by  which  its  power  of  rcguhition  Avould  he  iiii|i;iii-t'(l,  is  well 
illustrated  by  a  iiiiinhcc  ol"  recent  decisions,  wliirh,  however, 
should  be  contrasttnl  with  the  still  later  decision  in  the  Detroit 

2  Detroit      V.      Detroit      Citizens'  M.    &   St.    J".    K.    Co.    v.    Miiuicsotii, 

Street  Railway  Co.,  184  U.  S.  .S68.  134  U.  S.  418. 

"  R\i((^Ien    V.    Illinois,    108    U.    S.  •«  Wincliestcr    &    Lexinpton     Turn- 

ri'2Ct-  also  Rtonn  v.  Fnrmors'  Tjoiui  &  pike    Ron<l    Co.    v.    Croxton,    OH    Ky. 

Tnist    ('„.,    1in  TT.   S.   .^fl7;   Chicago,  73!»,  33  L.  R.  A.  177. 


§571 


RATES    AUTHORISED    BV    LAW.  591 


Street  Railway  Company  ease  just  eited.    A  statute  of  Illinois-"' 
gives  power  to  cities  and  villages  to  authorise  any  person  or 
private  corporation  to  construct  and  maintain  waterworks  at 
such  rates  as  may  be  fixed  by  ordinance,  and  for  a  period  not 
exceeding  thirty  years.    The  village  of  Rogers  Park  authorised 
the  construction  of  water  works  and  provided  by  ordinance: 
"The  said  grantee  or  assigns  shall  charge  the  following  annual 
Avater  rates  to   consumers  of  Avater  during  the   existence  of 
this  franchise.     *     *     *"     The  Supreme  Court  of  the  United 
States    (four   justices    dissenting)    held,   affirming   the   unani- 
mous decision  of  the  Illinois  Supreme  Court,  that  this  was  the 
language  of  command,  not  of  contract,  of  limitation  of  power, 
not  a  bargain  giving  power ;  hence  the  rates  were  during  the 
existence  of  the  franchise  subject  to  change  by  or  under  legis- 
lative authority.^     Another  statute  of  Illinois  gave  power  to 
municipal  authorities  to   contract  with  water  companies  for 
a  supply  of  water  for  public  use  for  a  period  not  exceeding 
thirty  years."     The  ordinance  by  which  the  city  of  Danville 
agreed  to  pay  a  specified  rent  for  a  number  of  hydrants  for 
the  term  of  thirty  j^ears  Avas  designated  as  a  contract,  but  the 
Supreme  Court  of  Illinois  held  (three  justices  dissenting)  that 
the  authority  given  by  statute  did  not  necessarily  imply  that 
the  price  of  the  supply  should  be  fixed  for  the  entire  period, 
especially  if  read  in  connection  wdth  the  other  statute  under 
which  w^ater  works  were  to  be  maintained  at  such  rates  as 
might  be  fixed  by  ordinance,  and  for  a  period  not  exceeding 
thirty  years ;  that  the  city  had  power  to  contract  for  a  supply 
of  water  for  the  entire  term,  but  that  the  price  was  to  be  de- 
termined from  time  to  time,  and  the  rates  to  be  settled  by  the 
rules  of  the  common  law.^     On  the  other  hand,  however,  the 
Supreme  Court  of  Delaware  has  held  that  the  charter  right 
to  operate  a  railroad  includes  the  right  to  determine  the  tariff 
of  charges,  and  that  the  latter  right  is  therefore  protected  by 

s  City  Act,  X,  §  1.  8  City     of    Danville     v.     Danville 

0  Rogers   Park  Water  Co.  v.  Fer-  Water   Co.,    178    111.    299,   53    X.    E. 

gus,  178  111,  571,  53  N.  E.  363;  180  118;    Danville    Water    Co.    v.    Dan- 

U.  S.  624.    See  also  Mayor  of  Knox-  ville,    180   U.   S.   619;    to   the   same 

ville    v.    Knoxville    Water    Co.,    107  effect  Freeport  Water  Co.   v.   Free- 

Tenn.   647,    64   S.    W.    1075;    Knox-  port,  186  111.  179,  57  N.  E.  862,  af- 

ville  Water  Co.  v.  Knoxville,  1S9  U.  firmed     (four    justices     dissenting), 

S.  434.  180  U.  S.  587. 
'  Hurd  's  Rev.  Stat.,  Cities,  266. 


598  PUBLIC  GRAXT  AND  LICENSES.  §  572 

the  federal  constitution,  and  cannot  be  controlled  by  the  legis- 
lature, that  the  limit  of  the  right  is  only  to  be  foimd  in  the 
common  law  offense  of  making  extortionate  charges  which 
must  be  established  by  judicial  proceedings.^  This  case  is  an 
extreme  application  of  the  charter  contract  theory. 

§  572.  Reservation  of  power  to  alter  and  repeal.— A  re- 
served power  to  alter  or  repeal  corporate  charters  may  be 
exercised  so  as  to  reduce  rates  charged  in  conformity  with  the 
original  charter.^"  It  should  be  noted  that  the  Supreme  Court 
has  never  decided  that  the  legislature  can  either  directly  sanc- 
tion an  imreasonable  or  oppressive  rate  so  as  to  make  it  unal- 
terable by  subsequent  legislatures,  or  confer  upon  the  com- 
pany an  irrevocable  power  to  establish  such  rates  as  it,  the 
company,  may  deem  reasonable,  and  which  may  be  unreason- 
able in  fact."  If  an  alleged  contract  is  void  in  its  inception 
for  unreasonableness,  it  produces  no  obligation  which  the  fed- 
eral constitution  will  protect. 

A  number  of  state  constitutions^-  provide  expressly  that 
the  police  power  shall  never  be  so  abridged  as  to  permit  cor- 
porations to  conduct  their  business  so  as  to  infringe  rights 
of  individuals  or  the  general  well  being  of  the  state. 

LICENSES  TO  USE  PUBLIC  PEOPEETY.     STEEET  PEANCHISES. 

§§  573-577. 

§  573.  Public  utilities.!  •' — The  most  important  public  grants 
have  in  modern  times  been  those  relating  to  the  special  use 
of  streets  for  tracks,  pipes,  poles  and  wires,  and  other  struc- 
tures of  public  service  corporations.  Grants  of  rights  to 
make  erections  on  and  in  public  rivers  also  Ix'long  to  the 
same  general  category,  wliile  the  building  of  a  steam  i-ail- 
rhad  upon  a  riglit  of  way  acquired  for  that  purpost^  re- 
f|uirf's  legislative  authority  chiefly  on  account  of  the  exercise 
of  corporate  powers  and  of  the  necessity  of  condemning  prop- 
erty by  eminent  domain  proceedings. 

In  the  casr'  of  street  rights,  the  (pieslion  \\l)cllii'i-  s|»(M'i;il 
proy)er1y  rights  of  abutters  are  taken  or  nut,  has  Ix-cn  gn-at'y 

"  I'liihidflphia,  W.  &  B.  E.  Co.  v.         1280    California,    Louisiana,    Mis- 

]-{(i\vtTM,  4  HoiihI.  .')()G,   1.H73.  HiRHif>|ii,    Missouri.    Moiilniin,    Pciiii- 

'"Stono  V.  WiHconsin,  1»4  U.  S.  LSI.  Hylv!ini:i. 

11  See    .-iH    lo    lattor    IMiihi.lcIpliiii  i'' Soo,  iilso,  §§  G74-68L 

&c.  U.  Co.  V.  HowerH,  4  ilouHt.  (Del.) 
r)()6. 


§  574  STREET  FKA.NClliSEJS.  599 

discussed  by  the  courts ;  this  question  has  been  briefly  touched 
upon  before,^"*  and  need  not  be  considered  in  this  connection. 

§  574.  Question  of  municipal  power.— The  question  has  also 
arisen  whetlier  witliout  specific  delegation  the  grant  of  street 
rights  is  within  the  power  of  municipal  authorities.  This 
was  denied  in  New  York  in  the  leading  case  of  Davis  v. 
Mayor^^  with  reference  to  an  exclusive  grant  for  a  term  of 
years,  and  the  power  to  dispose  of  street  rights  is  now  regu- 
larly granted  to  cities  in  express  terms  and  under  certain 
restrictions.  The  power  of  the  legislature  to  make  grants  of 
this  character  or  to  delegate  the  authority  to  make  them  to 
municipalities,  is  not  questioned,  except  that  in  some  states 
the  power  to  grant  monopolies  is  denied/^  and  except  that  a 
state  has  been  denied  the  power  to  part  with  the  whole  of  an 
important  harbor  to  a  private  company.^" 

v$  575.  Question  of  surrender  of  police  power.— The  doc- 
trine that  municipalities  cannot  make  such  grants  under  their 
common  power  to  regulate  the  use  of  streets,  is  largely  based 
upon  the  view  that  they  involve  a  surrender  of  the  delegated 
trust  to  exercise  a  continuing  control  over  streets  for  the 
benefit  of  the  public,  since  the  possession  of  special  rights 
limits  the  general  public  use.  In  so  far,  however,  as  such 
control  consists  in  regulation  merely,  and  is  demanded  by 
considerations  of  public  health  or  safety,  it  is  now  well  under- 
stood, that  a  grant  does  not  involve  such  surrender,  since  it  is 
impliedly  subject  to  such  reasonable  safety  regulations  as 
may  be  imposed  from  time  to  time.^^  The  grant  may  sur- 
render to  some  extent  the  previous  liberty  of  common  use  of 
the  public  property,  but  it  does  so  only  for  the  purpose  of 
substituting  other  and  presumably  more  valuable  public  fa- 
cilities. 

§  576.  License  a  contract  or  a  right  of  property.— In  order 
to  meet  the  objection  that  there  is  a  surrender,  even  to  this 
extent,  it  has  been  contended  that  the  act  allowing  the  special 

14  §§  509-510,  supra.  is  People    ex    rel.    New    York    &c. 

15  14  N.  Y.  506,  1856.  See  Booth,  Co.  v.  Squire,  107  N.  Y.  593,  S.  C. 
Street  Eailways,  §  15.  145   U.   S.    175 ;    Elliott,   Roads   and 

1"  Norwich  Gas  Light  Co.  v.  Nor-  Streets,    §§    818-819.      As    to   unrea- 

■wic'h    City   Gas   Company,    25   Conn,  sonable  requirement  see  N.  W.  Tel- 

19;  Thrift  v.  Elizabeth  City,  122  N.  oph.    Exch.    Co.    v.    :\[inneapolis,    81 

C.  31,  44  L.  E.  A.  427.  Minn.  140,  83  N.  W.  527,  86  N.  W. 

IT  Illinois  C.  E.  Co,  v.  Illinois,  146  69,  53  L.  R.  A.  175. 
U.  S.  387. 


600 


PUBLIC   GEANT   AND  LICENSES. 


§576 


use  of  the  public  property  is  merely  iu  the  nature  of  a  lieeuse. 
Massachusetts,  however,  is  the  only  state  which  treats  track 
licenses  on  public  streets  as  revocable. ^^  The  Supreme  Court 
of  Illinois,  while  holding  that  a  municipal  grant  of  a  track 
right  is  in  the  nature  of  a  license,  as  distinguished  from  a  fran- 
chise,2"  also  holds  that  the  license,  if  granted  for  a  valuable 
consideration  or  if  acted  upon  by  the  licensee,  becomes  a  con- 
tract, and  hence  irrevocable. ^i  The  license  has  been  held  ir- 
revocable in  other  states  in  which  the  question  has  arisen,-- 
and  NcAv  York  regards  a  track  right  as  inherently  exclusive 
and  necessaril}'  extending  at  least  over  a  term  of  years  -^  The 
Supreme  Court  of  the  United  States  holds  that  a  state  cannot 
withdraw  the  assent  which  it  has  given  upon  a  valuable  con- 
sideration, to  the  construction  of  a  railroad  within  its  limits.^'* 
With  regard  to  improvements  constructed  under  express 
public  license  in  rivers  and  streams  held  in  public  OA\aiership 
or  subject  to  a  public  easement  of  navigation,  Pennsylvania 
treats  mill  rights  as  revocable  r^  ^lassachusetts  has  held  cer- 
tain grants  to  be  subject  to  an  implied  reservation  in  favor  of 
the  paramount  public  uses  of  the  great  ponds  of  that  state, 
which  were  declared  before  the  grant  was  made,-^'  but  has  in 
other  cases  protected  improvements  made  upon  the  faith  of 
public  grants.2"  Where  the  Supreme  Court  of  the  United 
States  has  held  structures  in  public  waters  to  be  subject  to 


m  Springfield  v.  Si)ringfielcl  Street 
R.  Co.,  18li  Mass.  41,  04  N.  E.  577. 
See  §  582,  infra. 

ao  Chicago  City  E.  Co.  v.  People, 
73  111.  541,  1874.  The  same  view  is 
taken  in  Massachusetts  Attorney 
General  v.  Metropolitan  E.  E.  Co., 
11J5  Mass.  515. 

^iQuincy  v.  Hull,  10(5  111.  :{37 ; 
Chicago  Municipal  (las  Light  & 
Fuel  Co.  V.  Town  nf  Lake,  130  III. 
42,  22  N,  E.  (iKi;  People  v.  Bloeki, 
L'03  III.  3()3,  (i7  N.  E.  Sn9. 

2'.'Si)riiigfi<'l<l  E.  Co.  V.  Springfield, 
85  Mo,  (i7 ) ;  llovelman  v.  Kansas 
City  llorsc  E.  ('«..  7!>  M...  032; 
State  V.  Corrigan  St.  M.  Co..  S5 
Mo.  263;  Ele<trie  E.  Co.  v.  Crand 
Eaf>idH,  S4  Mich.  257;  Burlington  V. 
Burlington    Sln-et    E.    Co.,     10    Iowa 


144;  Williamsport  Passenger  E.  Co. 
V.  Williamsport,  120  Pa.  St.  1; 
New  Orleans  v.  Gt.  Sent  hern  Tel- 
ephone &c.  Co.,  40  La.  Ann.  41. 

■■i-''  Milhau  V.  Sharp,  27  N.  Y.  611  ; 
Potter  V.  Collis,  156  N.  Y.  16,  50 
N.  E.  413. 

^«  New  York,  L.  E.  &  Western  E. 
Co.  V.  Pennsylvania,  153  U.  S.  628, 
043. 

'-'■'' Siisi|U('lianiia  Canal  < 'o.  v. 
Wriglil,  5)  W.  iV:  S.  !» ;  UuiuWr  v. 
Delaware  &  Earitan  Canal  Co.,  14 
How.   SO. 

2"  Watuppa  Eeservoir  Co.  v.  Fall 
Eiv<T,   I  17  Mass.  54S. 

■-'■Commonwealth  v.  .Mger,  7  Cash. 
53;  Watupjia  Eeservoir  Co.  v.  Fall 
1,'iver,  154  Mass.  305. 


§  577  EXCLUSIVE    FRANCHISES.  601 

iurtlicr  public  improvciiu'iits,  it  has  likewise  done  so  on  the 
theory  of  a  reservation  in  the  original  grant.^**  But  generally 
compensation  is  a  matter  of  constitutional  right,  where  public 
use  requires  the  destruction  of  w^orks  established  under  legis- 
lative authority,2»  and  some  courts  seem  inclined  to  assume 
such  a  right,  even  where  the  work  has  been  constructed  under 
a  mere  passive  or  implied  license. •'^'* 

On  the  whole  the  preponderance  of  judicial  opinion  may  be 
said  to  support  the  view  that  a  public  act  granting  the  use  of 
public  property,  as  distinguished  from  a  license  to  pursue  a 
dangerous  business,  if  accepted  and  acted  upon  by  the  grantee, 
creates  a  right  of  property  which  cannot  be  taken  away  with- 
out compensation. 

§  577.  Revocability  not  affected  by  exclusiveness.— The 
question  of  the  revocability  of  a  license  exemption  or  franchise 
does  not  seem  to  be  affected  by  the  element  of  exclusiveness. 
Exclusive  privileges,  i.  e.,  privileges  which  are  protected 
against  competing  grants,  are  contrary  to  the  constitutions  of 
a  number  of  states,  but  not  contrary  to  the  Fourteenth  Amend- 
ment.^^ As,  however,  a  license  to  pursue  a  dangerous  busi- 
ness is  in  its  nature  revocable,  the  same  is  true  of  a  monopoly 
of  the  like  character :  the  same  considerations  of  public  health 
or  safety  which  in  the  first  instance  justified  the  exclusion  of 
competition,  subsequently  justifj^  the  withdrawal  of  the  ex- 
clusive privilege. 32  On  the  other  hand  an  exclusive  franchise 
granting  special  rights  in  public  property  (laying  of  pipes, 
maintenance  of  a  bridge)  may  be  made  the  subject  of  a  con- 
tract and  of  an  irrevocable  grant,  and  is  protected  against 
subsequent  competing  grants  by  the  federal  constitution. ^-^ 

28  Newport  &e.  Bridge  Co.  v.  "io  Yates  v.  Milwaukee,  10  Wall. 
United  States,  105  U.  S.  470.  See  497 ;  State  v.  Sargent,  45  Conn.  358 ; 
also  People  ex  rel.  Chicago  v.  West  Lewis  v.  Portland,  25  Or.  133,  35 
Chicago  Street  E.  Co.,  203  111.  551,  Pac.  256. 

68  N.  E.  78.  31  See  below,  §§  674-681  ;  Slaught- 

29  Bailey  v.  Philadelphia  &c.  E.  E.      er  House  cases,  16  Wall.  36. 

Co.,  4  Harr.    (Del.),  389;   Washing-  -ti  Butchers'     Union     &c.     Co.     v. 

ton   Bridge   Co.   v.   State,    18   Conn.  Crescent    City    &c.    Co.,    Ill    U.    S. 

53;    Miller   v.    Craig,   11   N.   J.    Eq.  746;  see  §  680,  infra. 

175 ;  Glover  v.  Powell,  10  N.  J.  Eq.  -^^  The      Binghamton      Bridge,      3 

211;   Chicago  v.  Laflin,  49  111.   172;  Wall.    51,    1866;    Now    Orleans    Gas 

Sherman  v.  Sherman,   18  E.  I.  504;  Light    Co.    v.    Louisiana    Light    Co., 

Langdou   v.   Mayor,   93   N.   Y.    129;  115  U.  S.  650. 
Williams  v.  Mayor,  105  N.  Y,  419. 


602  PLBLIC    GKAXT    AND   LICENSES.  >;  57^ 

SUGGESTIONS   REGARDING   RIGHTS  CLAIMED  UNDER 
AFFIRMATIVE  PUBLIC   SANCTION.     §§   578-582. 

§  578.  Theory  of  vested  rights.— The  course  of  adjudica- 
tions on  the  legal  status  of  rights,  exemptions  and  privileges 
claimed  under  affirmative  sanction  of  public  autliority  reveals 
a  number  of  anomalies  and  difficulties.  We  tind  the  original 
theory  of  the  contractual  inviolability  of  corporate  charter 
rights  and  of  exem})tions  from  taxation  so  much  modified,  that 
the  extent  of  protection  has  become  extremely  uncertain;  de- 
cisions depend  upon  relinements  of  construction  which  leave 
us  without  any  guidance  as  to  future  cases;  and  there  are  cases 
in  which  the  public  is  allowed  to  ignore  its  own  grants  and 
assurances,  contrary  to  the  i)lainest  dictates  of  justice. 

For  much  of  this  unsatisfactory  state  of  the  law  the  contract 
theory  of  public  grants  seems  to  ])e  responsible.  The  state 
has  been  held  to  a  contractual  obligation,  where  it  had  plainly 
acted  in  a  sovereign  capacity,  and  it  has  been  allowed  to  over- 
ride manifest  e(|uities  upon  the  pli-a  that  it  had  no  f)OAver  to 
bargain  away  its  governmental  authoi'ity.  Had  it  been  pos- 
sible from  the  beginning  to  substitute  for  the  idea  of  a  contract 
that  of  a  vested  right  oi'  interest.  ;i  uiueli  more  hariiiouious  and 
equitable  doctrine  would  li;i\-e  been  produced.  Our  courts 
have  h;id  little  occasion  to  discuss  Avhat  are  vested  rights, 
owing  to  the  abscn<M'  ol'  the  tci'in  in  most  of  our  state  consti- 
tutions. The  name  "vested"  itself  indicates  little  beyond  the 
idea  of  inviobibilily.  We.  however,  sometimes  find  in  place 
r)f  it  the  tei'ui  " "  ;i  c(  |u  i  re(  1  I'iglit"  which  cori'espomls  to  the 
French  Jind  (iernian  terminolog\-  (droll  dcquis,  crworhcnes 
h'fclil ),  and  which  indicates  that  the  right  i-ests  upon  a  valu- 
able consi<b'r;it  ion.  upon  ;i  (iiiid  j)ii)  (jiu)  received  by  the  state, 
nr  expen(h'd  bv  the  holiler.  Till'  |iroleclii»n  ol"  vested  I'ights 
would  then  nie;iii  tli.it  the  sdite  cannot  resume  its  grants  oi- 
licenses,  valid  in  their  incepti<tn,  and  for  wliicli  either  an 
»'(|uivaleiit  luis  been  received,  or  upon  the  faith  ot"  which  ex- 
penditures have  been  inviti'd  :ind  m.-uje.  without  ni.ddng 
proper  coni[)ens;it  ion. 

!:;  579.  Equity  of  executed  consideration.  It  is  easy  to  jioint 
out  ciises  in  which  the  coui'ls  luive  been  controlled  by  Ibis 
cjcnicnt    of   executed    consideration.'"       I'pon    Ihc    theor.y    (d"   a 

•ii  Sec  till'  liiiiciy  <:iscs  ciU'il  .Mo.  (50(5 ;  M  ississijijii  Sorioty  of  Arts 
suimi    S    .^nrj.      Frr-lciy)i    V.    Sliilo,    S      &o.  v.  MuHKrovc,  44   MIhh.  H120,  7  Am. 


§  579  EQUITY    OF    EXECUTED  CONSIDERATION.  603 

contract,  the  mere  promise  or  undertakins'  on  the  part  of  the 
grantee  that  he  will  carry  on  his  enterprise  would  be  sufficient 
to  give  him  constitutional  protection. s'^  But  there  are  cases 
in  which  municipal  grants  of  street  rights  were  protected  as 
contracts  only  when  they  had  been  acted  upon  by  the  grantee. 
Thus  where  an  ordinance  allowing  a  double  track  was  re- 
pealed after  the  second  track  had  been  laid,  it  was  held  that 
the  city  would  have  been  obliged  to  make  compensation  if 
(>xi)ense  had  been  reasonably  incurred  in  reliance  upon  the 
original  ordinance,  but  that  in  the  case  before  the  court  there 
was  no  right  to  indemnity  since  the  tracks  were  laid  after 
the  objections  of  the  Mayor  to  the  double  track  had  been 
nmde  known  to  the  President  of  the  Company.-'^*^  The  Supreme 
Court  of  Indiana  has  refused  to  apply  the  doctrine  of  the 
Dartmouth  College  case,  where  a  charter  was  amended  four 
days  after  the  original  act,  before  any  rights  were  acquired 
on  the  faith  of  it,-^"  and  the  attitude  of  the  United  States  Su- 
preme Court  itself  toAvard  corporate  charters  is  determined 
not  nearly  so  much  by  the  theory  of  contract  or  of  reserved 
poAver  as  by  the  substantial  character  of  the  rights  and  equities 
involved. 2^  It  should  also  be  noted  that  while  the  Supreme 
Court  correctly  denies  that  the  official  relation  constitutes  a 
contract,''^''  it  protects  the  salary  of  the  officer  after  he  has 
earned  it  upon  the  theory  of  a  contract  implied  in  law,  which 
in  this  case  can  only  mean,  that  by  performing  the  duties 
of  the  office  the  right  to  the  salary  becomes  vested.^'^  Upon 
the  theory  of  contract  the  holder  of  a  franchise  might  properly 
claim  that  the  terms  of  the  original  grant  should  remain  for- 
ever unimpaired ;  upon  the  theory  of  vested  rights  he  is  in  the 
same  position  as  any  other  holder  of  property,  i.  e.,  subject 
to  the  full  exercise  of  the  police  power. 

Rep.  7'23;  also  Phaleu  v.  Virgiuia,  8  line,    not    having    been    acted    upon, 

How.  163.  construed  as  revocable  license. 

35  See      Chicago      Municipal      Gas  "~  Cincinnati,    H.    &    I.    R.    Co.    v. 

Light  &c.  Co.  V.  Town  of  Lake,  130  Clifford,  113  Ind.  460,  15  N.  E.  524. 

111.  42,  22  N.  E.  618.  •'•»  See  the  recent  cases  of  Stearns 

"<■•  Lake  Roland  Elec.  R.  Co.  V.  Bal-  %.    Minnesota,    179   U.    S.    223,    and 

timore,  77  Md.  352,  20  L.  R.  A.  126.  Looker  v.  Maynard,  179  U.  S.  46. 

See  also  Classen  v.  Ches.  Guauo  Co.,  -io  Butler  v.  Pennsylvania,  10  How. 

81     Md.     25S,     municipal     ordinance  402. 

allowing    t(i   build   beyond   bulkhead  -lo  Fisk    v.    Jefferson    Police    Jury, 

11(5  U.  S.  131. 


604  PUBLIC  GKAAT  AND  LICENSES.  §  530 

^  580.  Licenses  limited  in  time  not  a  surrender  of  the  police 
power.— How  should  liquor  licenses,  lottery  franchises,  and 
permits  for  offensive  establishments  fare  under  the  theory  of 
vested  rights  ?  The  prevailing  doctrine  is  that  the  state  cannot 
bargain  away  its  police  power,  but  this  doctrine  is  applied  in 
an  extreme  and  unjust  manner. 

Let  it  be  conceded  that  a  legislature  cannot  bind  its  suc- 
cessors to  tolerate  any  direct  menace  to  life  or  property  or  to 
public  morals,  anything,  in  short,  which  is  a  nuisance  per  se. 
There  are  other  conditions  which  affect  safety,  order  and 
morals  in  a  more  remote  manner,  conditions  w'hich  it  may  be 
desirable  to  remove,  but  to  which  the  community  may  adjust 
itself  without  immediate  danger.  The  maintenance  of  a  lot- 
tery or  the  sale  of  intoxicating  liquor  may  thus  be  tolerated 
in  a  community  under  proper  regulations,  without  greater  evil 
than  would  result  from  the  evasion  of  an  unenforceable  or 
unenforced  prohibition.  A  legislative  policy  which  takes  this 
fact  into  consideration  is  legitimate  and  defensible.  There 
are  industries  which  cannot  be  conducted  without  some  danger 
to  safety,  health  or  comfort,  and  which  are  yet  useful  and 
even  necessary.  Legislative  policy  may  favor  such  industries 
under  regulations  minimising  their  evils,  if  a  balancing  of 
advantages  and  disadvantages  shows  a  clear  gain  to  the  com- 
munity. If  then  individuals  or  corporations  embark  upon  such 
undertakings  and  invest  their  capital  under  legislative  sanc- 
tion, are  their  interests  to  be  absolutely  at  the  mercy  of  the 
government,  without  any  constitutional  protection?  Such 
s('(Miis  to  be  tbe  prevailing  doctrine  of  our  courts  which  hold 
that  the  legislature  cannot  make  a  contract  binding  upon  the 
state  which  secures  the  right  to  continue  in  a  business,  con- 
ceded to  be  attended  with  public  inconvenience,  although  not 
a  nuisance  per  se.  lii  ])i'oiiiulga1ing  this  doctrine  without  qual- 
ification, a  very  ol)vious  distind  ion  is  lost  sight  of:  namely, 
1h;i1  between  ii  reasonable  exei-eise  and  a  surrender  of  the 
|K>lic<'  power-.  I's-'fiil  ;iii(l  \;ilii;iliic  piifposcs  iiuiy  be  subserved 
by  tcMipornry  licenses,  hence  liny  ;ire  reasonable  acts  of  gov- 
criniieiil  to  the  protection  of  Avliidi  the  state  may  bind  itself, 
but  perprtiinl  privileg(>s  iiiid  licenses  nre  never  neeessiiry  Jind 
therefore  necessarily  unreasonable. 

While,  therefoi-e.  n  business  cnrried  oti  nndi'i-  lompornry 
lirense  iiuiv  l)e  subject    to  |)olice  i-egulatioiis.   it   should    he  con- 


I  5S1  PERPETUAL  AND  REVOCABLE  LICENSES.  (iQ5 

stitutionally  secure  from  suppression  and  confiscation.  cxce])t 
upon  payment  of  compensation. 

§  581.  Perpetual  licenses  unreasonable.— In  reason,  the  same 
principles  should  apply  to  all  other  licenses,  franchises,  and 
exemptions.  The  United  States  Supreme  Court  has  recognised 
the  grant  of  a  perpetual  exemption  from  taxation  as  a  bind- 
ing contract,  but  the  tendency  of  constitutional  development 
has  been  to  stamp  such  an  exemption  as  unreasonable.  On  the 
other  hand  the  exemption  of  a  person  which  must  end  with 
his  life,  in  consideration  of  public  services  Avhich  he  has  ren- 
dered upon  the  faith  of  the  promise,  ought  to  be  protected 
against  withdrawal. 

Licenses  and  grants  of  street  rights  have  now  invariably 
a  time  limit,  frequently  under  constitutional  mandate,  the 
unreasonableness  of  perpetual  privileges  thus  being  recognised 
by  the  fundamental  law. 

The  maximum  duration  of  such  grants  is  commonly  fixed 
by  positive  provision ;  but  the  reasonableness  of  the  period 
may  be  generally  tested  by  the  expenditure  made  by  the  li- 
censee. It  is  obvious  that  the  amount  of  the  license  fee  which 
may  be  nominal,  can  furnish  no  proper  standard.  So  it  has 
been  held  that  a  municipal  corporation  cannot  revoke  a  license 
before  the  licensee  has  been  reimbursed  for  his  outlay,^^  but 
that  after  a  long  period  of  enjoyment  such  reimbursement 
will  be  presumed.'*^  In  a  majority  of  cases  thirty  years  is  an 
ample  period  for  the  amortisation  of  the  capital  invested. 

§  582.  Licenses  in  terms  made  revocable.— Where  a  license 
is  made  revocable  in  its  terms,  it  must  be  conceded  that  there 
can  be  no  constitutional  claim  to  protection,^^  \y^^j^  ^}^q  justice 
and  policy  of  revocable  licenses  is  doubtful,  for  they  will  be 
invariably  accepted  in  reliance  upon  the  non-exercise  of  the 
right  to  revoke,  and  the  revocation  is  therefore  as  much  a 
hardship  as  if  the  right  had  not  been  reserved.^^  It  is  inter- 
esting to  note  that  the  German  Trade  Code  has  abandoned  the 
system  of  revocable  licenses,  and  in  the  case  of  the  liquor  busi- 

41  Town  of  Spencer  v.  Andrew,  82  ■*■'•  Scliwiiehow    v.    Chicago,    68    111. 

Iowa  14,  12  L.  E.  A.  115.  444. 

*-  City  Council  Augusta  v.  Burum,  **  Coverdale  v.  Edwards,  155  Ind. 

93  Ga.  68,  26  L.  R.  A.  340.  374,  5S  X.  E.  495. 


,606  PUBLIC   GEANT  AND  LICENSES.  §  582 

ness  even  forbids  time  limitations,  every  license  being  granted 
for  the  life  of  the  holder.-*^ 

In  ^Massachusetts  the  principle  of  revocability  is  extended  to 
the  location  of  street  railroad  tracks.     The  report  of  the  Spe- 
cial Committee  appointed  under  the  act  of  1897  to  investigate 
the  relations  between  cities  and  towns  and  street  railway  com- 
panies speaks  of  the  legal  position  of  the  latter  as  ''peculiar, 
almost  anomalous,''  and  as  "in  theory  to  the  last  degree  il- 
logical."   ^Hiile  the  Committee  found  that  the  system  worked 
on  the  Avhole  satisfactorily,  so  that  neither  the  municipalities 
nor  the  companies  desired  a  radical  change,  the  former  wish- 
ing to  retain  the  right  of  revocation  at  will  as  a  weaixm— "a 
sort  of  discussion  bludgeon"— the  latter  preferring  to  a  fixed 
term  a  franchise  practically  permanent,  and  what  the  report 
calls  a  tenure  during  good  behavior,  yet  the  Committee  recom- 
mended that  the  action  of  the  municipal  authorities  should  be 
subject  to  revision,  and  the  law'now  provides  for  revocation  of 
locations,  upon  notice  and  hearing,  if  the  public  necessity  and 
convenience  in  the  use  of  the  streets  so  require,  for  good  and 
sufficient  reasons  to  be  stated  in  the  order  therefor,  such  oixler, 
unless  the  company  consents,  not  to  be  valid  until  approved 
by  the  board  of  railroad  commissioners  after  public  notice  and 
hearing.-*'^     The  right  of  appeal  to  a  higher  administrative  au- 
thority gives  practically  the  same  security  against  arbitrary 
simliation  as  would  result  from  judicial  protection.    The  chief 
ilitference  between  such  tenure  and  a  contractual  right  seems 
to  be  that  the  latter  can  be  forfeited  only  by  breach  of  duty 
and  misconduct,  while  the  former  may  have  to  be  surrenderetl 
without  compensation,  if  public  interest  requires  it,  even  where 
the  company  is  not  at  fault.     But  the  requirement  of  notice 
and  hearing  and  the  right  of  appeal  afford  adequate  ]>mtectiou 
against  the  assertion  of  unjust  ;in<l  cipricious  chiinis  oi"  ])ublit' 
interest.     It  is  lo  Ix'  expected  \h:\\  llic  1)oard  of  railroad  com- 
•  missioners  will  develop  a  rational  and  consistent  body  of  rules 
;i[i(|   pfinciples  foi-  the  approval  and  disapproval  o\'  iiiunieif)al 
orders  of  i-evocatiou. 

4r,  §  40.  »'i  Heviscd   l/iiws,  di.    II'J.  §  32. 


CHAPTER  XXVII. 
SOCIAL  AND  ECONOMIC  REFORMS. 

§  583.  In  general.— The  establishment  of  the  modern  social 
and  economic  system  involved  the  abrogation  of  a  number  of  in- 
stitutions which  claimed  the  jjrotection  due  to  vested  rights: 
seignorial  rights  and  bondage,  class  and  trade  privileges  and 
monopolies,  burdens  and  restrictions  on  property  in  land,  and 
the  holdings  of  the  Dead  Hand.  In  America  the  institution  of 
slavery  has  furnished  the  one  great  example  of  vested  rights 
antagonistic  to  the  progress  of  civilisation.  The  downfall  of 
old  systems  has  often  been  preceded  by  great  political  crises 
and  revolutions,  and  the  measures  directed  against  them  have 
in  consequence  not  always  been  normal  manifestations  of  law 
and  government,  and  hardly  furnish  a  test  for  the  limitations 
of  the  police  power.  But  the  necessary  reforms  have  always 
been  finally  accomplished  b}^  legislation,  and  it  is  instructive 
to  note  the  attitude  Avhieh  government,  claiming  to  act  through 
the  form  of  law,  has  taken  toward  the  problem  of  vested  rights. 

THE  ABOLITION  OF  SLAVERY.     §§  584-586. 

§  584.  Early  legislation.— There  are  two  ways  in  which  a 
state  may  abrogate  slavery  without  a  spoliation  of  vested 
rights:  by  emancipating  the  future  issue  of  living  slaves,  and 
by  granting  compensation. 

The  former  plan  was  adopted  by  some  of  the  Northern 
states.  Pennsylvania  in  1780  abolished  the  slavery  of  children 
as  a  consequence  of  the  slavery  of  the  mother;  such  children 
were,  however,  to  remain  the  servants  of  the  proprietor  of  the 
mother  until  the  age  of  twenty-eight.  Connecticut  and  Rhode 
Island  provided  in  1784  that  children  thereafter  born  of  slaves 
should  be  free.  New  York  adopted  the  method  of  the  Penn- 
sylvania law  in  1799,  New  Jersey  in  1804.  The  statutory  ser- 
vice of  the  children  was  similar  to  that  of  apprentices  bound 
out  by  the  overseers  of  the  poor. 

§  585.  Legislation  during  the  civil  war  and  the  question  of 
compensation.  —  For  the  Southern  states  emancipation  was  not 
considered    l\v    responsible    govei-nmenls   until    after    the    out- 

G07 


608  SOCIAL  AND  ECONOMIC  EEFORMS.  §  585 

break  of  the  Civil  War.i  Qn  Mareli  G,  1862,  President  Lincoln 
recommended  to  Congress  the  adoption  of  a  joint  resolution 
to  the  effect  that  the  United  States  ought  to  co-operate  with  any 
state  which  may  adopt  gradual  abolishment  of  slavery,  giving 
to  such  state  pecuniary  aid,  to  be  used  by  such  state,  in  its 
discretion,  to  compensate  for  the  inconveniences,  public  and 
private,  produced  by  such  change  of  system.  Such  a  resolution 
was  adopted  by  Congress  on  April  10.  In  ]\Iissouri  serious 
efforts  were  made  in  the  Legislature  to  carry  through  some 
plan  of  gradual  emancipation,  but  they  failed.^  On  April  IG, 
1862,  Congress  abolished  slavery  in  the  District  of  Columbia, 
providing  for  compensation  to  the  slave  owners  and  appro- 
priating $1,000,000  for  that  purpose,^^  but  on  eJune  19,  1862,  an 
act  was  passed  declaring  that  thereafter  neither  slavery  nor 
involuntary  servitude  should  exist  in  the  Territories,  without 
making  an}^  mention  of  compensation.^  In  the  Preliminary 
Emancipation  Proclamation  of .  September  22,  1862,  the  Presi- 
dent stated  that  he  would  in  due  time  recommend  that  upon 
the  restoration  of  constitutional  relations  loyal  citizens  in  the 
South  be  compensated  for  all  losses  by  acts  of  the  I-nited 
States,  including  the  loss  of  slaves.  The  emancipation  of  Jan- 
uary 1,  1863,  was  purely  a  war  measure,  not  applying  to  paci- 
fied districts,  and  while  it  freed  millions  of  slaves  it  did  not 
attempt  to  abrogate  the  institution  even  in  the  territory  for 
which  it  Avas  proclaimed.  Under  the  circumstances,  compensa- 
tion was  out  of  the  question.  On  December  31,  1862,  Congress 
had  provided  that  in  the  new  state  of  West  Virginia  all  chil- 
dren thereafter  born  of  slaves  should  be  free,  slaves  under  the 
age  of  ten  years  should  be  free  when  twenty-ojK^ ;  slaves  be- 
tween the  ages  of  ten  and  twenty-one  should  he  fre(>  when 
twenty-five,-'"'  This  plnii  of  gradnal  cniimeipation  became  pai't 
of  the  Constitnlinii  ol'  Wi'st  Vii-ginia  ;  it  will  lir  noticed  1li;i1 
as  to  living  slaves  inidi  r  twenty-one  it  took  away  vested  rights; 
but  it  did  not  provide  I'oi'  eoiiipi'iisiit  ion.  In  lS(i4  ;i  luniiliei-  ot 
Sonlliei-n  States,  acting  under  Ndflliei'n  dictation,  abolished 
slavery,  iiniuediately  and  without  eoiiipensat ion.  Tli(>  same 
coiirse  was  taken  voliiiit;i  rily  l)\'  Miiryland.  XovenilxT  1,  lS(i4. 

1  Tlif  Constitution  of  Kentucky  of  •-:  T1ioi|m',     Constitiitioiiii]     Tlislory 

IT'.tl,    Art.    7,    provi.lcij    tlwit    hIiivcr  of  tlic^  UnitcMl  SI.-Ucs  1 1  f,  ;V.»— (IS. 
blioiild    not    be   em.-UK-ipiitccI    i>y    law  •«  Iti  Rtiil.  at  Ti.  I^TO. 

without   the  consent    of   tlic   owners,  ■»  12  Stat,  al  I>.  432. 

or  without  paying  fnli  conipensation.  o  12  Stat.. -it  L.  ()33. 


5;  586  TRADE  PRIVILEGES.  609 

and  Missouri,  January  11,  1865.  When  tlio  Thirteenlh  Anicnd- 
ment  to  the  federal  constitution,  abolishing  slavery,  was  pro- 
])()sed,  the  discussion  turned  upon  the  question  whether  tlie 
national  government  had  power  to  abolish  for  the  states,  not 
whether  any  government  might  abolish  wnthout  compensation. 
Compensation  Avas  not  considered  and  the  amendment  became 
juirt  of  the  constitution  without  it. 

§  586.  Constitutional  aspect  of  abolition.— Abolition  in  the 
United  States  came  as  the  result  of  a  war,  of  which  slavery 
had  been  the  cause,  and  which  had  cost  more  money  than  the 
shives  had  been  -worth;  it  came  moreover  when  the  institution 
had  been  practically  destroyed  and  could  not  possibly  have 
been  maintained  any  longer.  It  is  therefore  impossible  to  draw 
ijeneral  constitutional  inferences  from  the  denial  of  compen- 
sation;  on  the  other  hand,  there  is  nothing  to  show  that  at 
any  time  before  the  war  or  even  during  the  first  years  of  the 
war,  outright  abolition  without  compensation  was  regarded 
as  a  constitutional  power  of  government.  The  precedents  of 
England,  France  and  Russia  had  been  in  favor  of  compensa- 
tion. The  preponderance  of  opinion  in  favor  of  compensation 
is  all  the  more  remarkable  as  the  property  abolished  was  of  a 
kind  utterly  repugnant  to  moral  sentiment. 

TRADE  PRIVILEGES  AND  FEUDAL   RIGHTS.     §§  .587-588. 

§  587.  Class  and  trade  privileges  and  exemptions.— The  con- 
stitutional status  of  established  privileges  and  exemptions  in 
America  has  already  been  considered.  They  have  never  been 
of  overruling  importance  in  the  United  States  so  as  to  domi- 
nate the  economic  system  of  the  country.  It  is  well  recog- 
nised that  they  are  contrary  to  public  policy,  and  their  aboli- 
tion for  compensation  is  therefore  clearly  justified.^ 

In  the  states  of  the  European  Continent  the  demand  for  free- 
dom of  trade  and  industry,  and  for  equality  in  the  distribution 
of  public  burdens,  led  to  an  extensive  abrogation  of  privileges 
and  exemptions  of  various  kinds,  and  the  right  to  compensa- 
tion seems  to  have  been  determined  largely  by  equitable  con- 
siderations. 

The  abolition  of  gild  monopolies  was  not  regarded  as  sub- 

I-.  West   River   Bridge   Co.-   v.    Dix,  County  of  St.  Clair,  7  111.  197;  Ceu- 

fi   How.   n07;    Commissioners   of   tlio  tral     Bridge     Corp.     v.     Lowell,     70 

Sinking    Fund    v.    Green    &c.    River  INIass.    (4  Gray)   474. 
Navigation  Co.,  79  Ky.  73;  Mills  v. 

39 


610  SOCIAL  AND  ECONOMIC   IIEFOEMS.  §  588 

ject  to  an  obligation  to  make  compensation,  as  their  privileges 
were  of  a  semi-political  character,  and  were  claimed  to  be 
held  for  the  public  benefit  and  not  for  private  emolument.  A 
German  imperial  law  of  1654  gave  to  municipal  governments 
the  power  to  alter  any  gild  charter  J  In  England  the  tendency 
was  since  the  Fifteenth  Century  to  supersede  the  restrictive 
bye-laws  of  comi)anies  and  corporations  by  parliamentary  en- 
actment, which,  while  they  did  not  establish  freedom  of  trade, 
at  least  placed  trade  restrictions  under  public  sanction  and 
control,'*^  so  that  the  final  abolition  of  restrictions'*  did  not 
appear  as  a  measure  directed  against  private  right;  it  saved, 
indeed,  the  customs  of  gilds  which  by  that  time  had  become 
practically  impotent.^"  In  France  gild  monopolies  were  abol- 
ished in  1776,  but  it  is  said  that  the  gild  of  barbers  was  ex- 
cepted, because  they  had  bought  their  privilege  and  the  state 
could  not  pay  them^^— a  clear  recognition  of  the  principle  of 
vested  rights.  The  French  law  abolishing  the  UKUiopoly  of 
brokers  (excepting  exchange  brokers)  provided  for  indemni- 
fying those  established  in  the  l)usiness.i  -  Pryssia  al)i'ogated 
trade  monopolies  (Bannrechte),  partly  Avithout  compensation 
"because  experience  has  shown  Ih.it  the  abrogation  does 
not  diminish  profits, "'••  while  as  lo  others  compensation 
was  made  to  depend  npon  pi-oof  of  loss."  A  Prussian  law 
of  1861  abolished  exemptions  from  the  land  tax,  granting 
compensation  of  twenty  times  the  amount  of  the  annual  tax 
where  the  exemption  had  been  originally  granted  for  a  con- 
sideration ())•  otherwise  rested  upon  special  acts  of  a  private 
nature,  and  of  Ihirteen  and  a  half  times  the  amount,  in  the  ab- 
sense  of  sneli  litlr.  The  I'l-ussian  income  tax  law  of  1891  was 
made  to  apply  lo  members  of  tlw  roi'mecly  sovereign  liouses 
as  soon  as  provision  should  have  been  m.nle  \'n\-  ihcir  indemni- 
fication. 

5;  588.  Seignorial  rights. — Seignorial  rights  of  a  feudal  char- 
acter are  uid<n()wn  in  tlir  I'nitiMl  States.  The  Conslitnlion  o!" 
New  York  of  lS4(i'''  al)olislie<l  :ill   fendal  tennres  willi  all  their 

-  Uoic-hHJihHcliicd     \r>r)A,    Ail.     iDC;  '  i  lu.s.licr,   I  1 1,  S73. 

■RoHchfT    Niilionalockmi.iinii'  III,    \>.          i^  Law  .Inly  IS,  ISOO. 

^02.  ei  Rii('li(>nl)Pr^cr  Ajjrarwcscn,  §  '-'7. 

"  KHiH-cialiy  r,  Kli/,.  <•.  4.  "  ifnsclKT,    III,  p.  HIT). 

"54  Opo.  Ill,  v.  96.  '•'  I,  §   IL 

>«  Ciinniiif^liam,  fSniwIli  of  Rn)jliHh 
rdinmrTcc,  §   L'76. 


§  589  SEIGNORIAL   RIGHTS.  611 

incidents,  savin<;-  rents  and  services  certain,  tlieretui'ure  law- 
fully created  or  reserved.  Similar  provisions  are  found  in 
Wisconsin,  IMinnesota  and  Arkansas.  The  provision  was 
taken  over  from  the  Revised  Statutes  of  1828  and  is  also  to  he 
found  in  the  Revised  Laws  of  1813.  The  saving  clause  shows 
that  the  abolition  was  intended  to  be  retroactive ;  but  as  mili- 
tary tenures  never  existed  in  New  York  any  more  than  in  the 
other  colonies  or  states,  it  is  not  easy  to  see  what  vested  rights 
could  have  been  destroyed,  the  main  incident  to  socage  tenure, 
the  rent  service,  being  expressly  saved  by  the  statute.  The  abo- 
lition of  military  tenures  in  England'*^  was  accompanied  by 
the  creation  of  an  excise  tax  to  compensate  the  King  for  his 
loss;  but  no  provision  was  made  for  compensating  the  mesne 
lords  w^hose  tenures  and  incidental  profits  were  likewise  taken 
away.  The  earlier  plan  for  abolishing  military  tenures,  moved 
in  Parliament  in  the  reign  of  James  I,  contained  a  provision 
"for  a  convenient  rent  to  be  assured  to  the  lords  of  every 
knight's  fee;"  and  upon  the  abrogation  of  patrimonial  and 
heritable  jurisdictions  in  Scotland  in  1747  an  indemnity  of 
£164000  was  awarded  to  the  lords.  The  seignorial  rights  in 
France  (1789),  Austria  (1848),  and  Prussia  (1850)  were  abro- 
gated without  provision  for  indemnity.^'  The  denial  of  com- 
pensation in  these  cases  rested  upon  the  theory  that  rights  to 
compulsory  personal  services,  hunting  privileges,  mortuaries, 
etc.,  were  mere  incidents  to  a  personal  servitude,  and  that  their 
exaction  could  not  grow  into  vested  rights/"** 

PERPETUITIES  AND  MORTMAIN.     §§  589-596. 

,§589.  Perpetual  rents.— Perpetual  ground  rents  are  either 
incidents  to  a  socage  tenure  (rents  service),  or  rest  upon 
grant  without  the  relation  of  lord  and  tenant."''  They  have 
for  a  long  time  ceased  to  be  created  in  this  country,  but  rents 
dating  from  earlier  periods  still  exist  in  Eastern  states,  notably 
in  New  York  and  Pennsylvania.  In  1869  a  statute  was  enacted 
in  Pennsylvania  enabling  the  owner  of  property  burdened 
with  an  irredeemable  rent  to  institute  proceedings  against  the 

16  12  Car.  II,  c.  24,  1660.  is  Lassalle,  System  der  erworbenen 

17  Roseher    Nationaloekouomie    II,      Reclite  I,  191,  §  9. 

§    124;    Meyer   Verwatungsrecht,    p.  n' Rents    charge,    or    rents    seek; 

299.     The  German  laws  on  the  sub-      Blackst.  II,  41. 
ject  are  collected  in  Kraut,  Privat- 
recht,  1886,  p.  118-122. 


612  SOCIAL  AND  ECONOMIC  EEFORMS.  §  59O 

owner  of  the  rent  for  its  redemption  at  a  sum  to  be  assessed  by 
a  jury,  the  damages  not  to  be  estimated  at  less  than  twenty 
years'  purchase  thereof.-'^  This  statute  was  declared  uncon- 
stitutional upon  the  ground  that  the  removal  of  restrictions 
on  alienation  did  not  constitute  a  public  use  for  which  the 
power  of  eminent  domain  can  be  exercised.- ^  This  decision  can- 
not be  accepted  as  sound.  In  the  words  of  one  of  the  justices 
of  the  court:  "It  cannot  be  that  contracts  of  a  past  genera- 
tion are  beyond  the  reach  of  laAV  for  a  proper  purpose,  a  pur- 
pose not  to  destroy,  but  to  change,  to  suit  the  interests  of  the 
state.  Otherwise  a  contract  would  stand  on 'a  higher  plat- 
form than  that  of  the  people  to  change  their  form  of  govern- 
ment. ' '  It  appears  from  the  opinion  that  the  court  would  have 
admitted  the  validity  of  an  act  forbidding  the  future  creation 
of  perpetual  ground  rents.  There  can  indeed  be  no  doubt  that 
the  prevention  of  perpetual  burdens  is  a  legitimate  object  of 
public  policy .22  And  it  may  be  confidently  asserted,  that  what- 
ever policy  may  be  legitimately  pursued  by  prospective  stat- 
utes, may  also  be  enforced  against  vested  rights  of  indefinite 
duration  by  the  exercise  of  the  power  of  eminent  vlomnin. 
Otherwise  the  heritage  of  past  generations  Avoukl  shackle  for- 
ever the  future  of  the  economic  and  social  system  of  the  coun- 
try. Upon  the  principle  laid  down  by  the  Pennsylvania  court, 
no  constitutional  legislation  could  have  abolished  the  feudal 
system  of  Europe. 

§  590.  Perpetual  covenants,  — There  seems  to  have  been  no 
legislation  in  this  country  dealing  retroactively  with  perpetual 
restrictions  upon  the  use  of  land.  It  is,  however,  well  estab- 
lished that  the  courts  will  construe  such  restrictions  as  cove- 
nants rather  than  as  conditions  if  it  is  possible  to  do  so,^''  and 
the  specific  enj'orcement  of  a  covenant  may  be  refused,  when 
the  condition  of  the  property  has  materially  changed.-'  "It 
must  not  be  supposed  that  incidents  of  a  novel  kind  can  be  de- 
vised and  attached  to  property  at  the  fancy  or  caprice  of  any 
owner.     It  is  inconvenient  to  the  public  weal  that  such  a  lati- 

2'>L;iwH  ISGO,  p.  47.  I'nst  v.  Weil,  115  N.  Y.  361,  5  L.  R. 

•Ji  Puliiirot's    Appeal,    f,?    I'ii.    St.  A.  422;  Stanley  v.  Colt,  5  Wall.  119. 

479.     Sec  WilHon  v.   iRcminRcr,    IH.'i  -»  Trust ecs  of  Columbia,  College  v. 

U,  S.  .15,  TiiMclKT,    87    N.    Y.    311;    Diikc    of 

22  Sec  §  370,  supra.  Hcdfnrd   v.   Trustees   of   tlio  T.ritisli 

23  WoodrufT  V.  Woodruff,  44  N.  J.  Museum,    2    Myl.    &   K.    552;    Addi- 
Eq.  349,  10  Afl.  4,  1   L.  1?.  A.  380;  j-on  on  Contracts,  9th  edn.  p.  284. 


§  591  KN TAILS.  618 

tude  should  be  givi-ii.  TluTi'  can  be  ikj  liai'iu  in  allowinj,^  tlic 
fullest  latitude  to  men  in  binding?  themselves  and  their  per- 
sonal representatLves  to  answer  in  damages  for  breach  of 
their  obligations;  but  great  detriment  would  arise,  and  much 
confusion  of  rights,  if  parties  were  allowed  to  invent  new 
modes  of  holding  and  enjoying  property,  and  ini[)ress  upon 
their  lands  and  tenements  a  peculiar  character  which  should 
follow  them  into  all  hands  hoAvever  remote."-"'  A  law  of 
^Fassaehusetts  provides  that  conditions  or  restrictions,  un- 
limited as  to  time,  by  which  the  title  or  use  of  real  property 
is  affected,  shall  be  limited  to  the  term  of  thirty  years  from 
the  date  of  their  creation  except  in  cases  of  gifts  for  public 
charitable  or  religious  ])urposes.  But  the  law  does  not  apply 
to  conditions  or  restrictions  existing  at  the  time  of  its  enact- 
ment.26 

§  591.  Entails. — The  rule  against  perpetuities  is  received 
in  America  as  part  of  the  common  law,^^  and  in  Louisiana  the 
rule  of  the  French  Civil  Code  accomplishes  the  like  purpose.^^ 
The  estate  tail  of  the  English  law  does  not  constitute  a  per- 
petuity, since  the  tenant  in  tail  was  at  least  since  the  fifteenth 
century  enabled  to  convey  a  fee  simple  by  fine  and  recovery. 
In  many,  perhaps  nearly  all,  of  the  United  States  estates  tail 
have  been  abolished  by  statute,  so  in  Virginia  in  1776,  in  New 
York  in  1786.  The  statute  of  New  York  undertook  to  con- 
vert existing  estates  tail  into  estates  in  fee  simple.  While 
this  destroyed  the  estates  in  remainder  and  reversion,  it  can- 
not be  regarded  as  an  interference  with  vested  rights,  since 
even  before  the  statute  these  future  intere.sts  had  been  liable 
to  be  cut  off  by  the  tenant  in  tail.  A  special  statute  for  the 
barring  of  an  entail  has  therefore  been  held  constitutional  in 
Ohio.^*^  In  Illinois  estates  tail  are  converted  into  life  estates 
in  the  first  tenant  with  remainder  in  fee  simple  in  the  persons 
to  whom  at  common  laAv  it  would  pass  upon  his  death.-"^'^  This 
statute,  however,  applies  only  to  estates  tail  to  be  created  in 
the  future;  and  it  seems  that  a  retroactive  provision  of  this 
nature  Avould  be  unconstitutional,  since  the  common  law  right 

25  Lord    Brougham    in    Keppel    v.  ties,  §  200;  Chilcott  v.  Hart.  23  Col. 

Bailey,  2  Myl.  &  K.  517.  40,  35  L.  E.  A.  41. 

2c  Laws  1887,  ch.  418 ;  Kev.  Laws,  28  Louisiana  Code,  §  768. 

ch.  134,  §  20.  20  Carroll  v.  Olmsted,  16  Oh.  251. 

2T  Gray,    Kule    Against    Perpetui-  ^'^  Eev.  Stat.  Conveyances,  §  6. 


614  SOCIAL  AND  ECONOMIC  EEFORMS.  §  592 

of  the  tenant  in  tail  t(i  suffer  a  recovery  or  the  method  of  as- 
surance substituted  therefor  in  America  must  be  regarded  as 
constituting  a  vested  property  right. ^' 

§  592.  Acts  of  secularisation.— The  holding  of  property  to 
charitable  uses,  and  the  holdings  of  corporations  under  licenses 
in  mortmain  or  other  statutory  authority  corresponding  to 
such  license,  constitute  exceptions  to  the  rule  against  per- 
petuities. 

During  the  Middle  Ages,  and  down  to  the  last  century  the 
large  possessions  of  the  Catholic  Church  illustrated  in  a  con- 
spicuous manner  and  on  an  enormous  scale  the  evils  of  landed 
property  withdrawn  from  commerce  and  alienation.  These 
evils  led  in  France  (1789),  Germany  (1801),  and  Italy  (1870) 
to  a  process  of  so-called  secularisation  by  Avhicli  the  state  con- 
fiscated large  amounts  of  ecclesiastical  property.^^  These  acts 
of  secularisation  were  generally  admitted  to  be  violations  of 
the  principle  of  the  sanctity  of  vested  rights,  but  were  justified 
or  excused  on  the  ground  of  political  necessity. 

§  593.  Suppression  of  monasteries  in  England.— The  sup- 
pression of  the  monasteries  in  England  at  tlie  time  of  the 
Reformation  Avas  accomplished  only  in  part  by  direct  con- 
fiscation. In  the  canon  law  suppression  is  a  technical  term  for 
the  taking  of  benefices  for  cause  and  by  a  judicial  proceeding. 
Henry  VIII  began  his  attack  upon  the  possessions  of  the 
church  by  procuring  in  1-528  from  the  Pope  a  license  to  sup- 
press certain  monasteries.  A  general  visitation  folloAved  in 
1535  for  the  purpose  and  with  the  result  of  discovering  abuses 
sufficient  to  serve  as  a  warrant  for  suppression.  In  the  case 
of  the  most  important  monasteries,  hoAvever,  surrenders  vol- 
untary in  rornr'-'  were  obtained  or  extorted  from  Friars  and 
Superiors  who  siil)ini11e(l  themselves  to  llie  King's  clemency. 
The  first  act  of  confiscalion  was  that  of  ir)3().-"  It  ai)!)lie(l  to 
all  monasteries  of  less  lli;in  l!l.'()()  ;innu;il  income,  which  on 
account  of  ;i1)iises  in  llii'ii'  c(»iiilnct  were  granted  to  the  Kinji' 


31  fiilpin    V.    WilliiUTiH,    LM    Oli.    St.  locii      <niiip      sacris      error      vctornm 

283.  <l('|)ii1itvit.       ii()str;H>       rci       jiilicmus 

•"•z  Tlic     procoHS     1)1"     HCH'iiljirisatioii  socJMri. 
WHS    alfio    Jipplied    by    the    CliriHtiaii  •'■''  I'^or   renin  ut'  hvicIi  Hiirroiidcr  hoo 

EmpororH  to  property  dcvotoil  to  tlic  Ifymcr 'h   I'ocilcrii,  XIV,  748. 
pagan  <-iilt ;   Codex   1,   11,  .5:    omnia  •'» 'J?  H.  VIIJ,  c.  28. 


§  594  SUPPRESSION  OF  MONASTERIES.  615 

and  his  heirs  and  assigns  "to  do  and  use  herewith  his  and 
their  own  wills  to  the  pleasure  of  Almighty  God  and  to  the 
honour  and  profit  of  this  realm."  Yearly  pensions  were  to  be 
allowed  to  the  chief  heads  and  governors  of  these  houses,  and 
the  monks  were  to  be  committed  to  honorable  great  monas- 
teries. The  statute  of  31  Henry  VIII  chapter  13  entitled  "an 
act  for  dissolution  of  monasteries  and  abbies"  is  generally  be- 
lieved to  have  accomplished  the  suppression  of  religious 
houses;  but  the  act  merely  confirms  former  suppressions  and 
surrenders  and  vests  in  the  King  all  other  monasteries,  etc., 
"which  hereafter  shall  happen  to  be  dissolved,  suppressed,  re- 
nounced, relinquished,  forfeited,  given  up,  or  by  any  other 
means  shall  come  to  the  King's  hands."  The  acts  of  37  H. 
VIII  cap.  4  and  1  Edw.  VI  cap.  14  vested  in  the  possession  of 
the  King  without  office  found  all  chantries,  colleges,  free  chap- 
els and  hospitals  with  certain  exceptions  (the  cathedral 
churches,  the  colleges  of  Oxford,  Cambridge,  Eton,  etc).  The 
act  recited  the  abuses  connected  with  these  institutions,  and 
that  their  conversion  to  good  and  godly  uses  had  best  be  com- 
mitted to  the  King.  It  made  provision  for  annuities  to  be 
granted  to  all  persons  supported  out  of  these  establishments, 
and  directed  the  continuation  of  all  grammar  schools  main- 
tained thereby;  the  income  from  a  portion  of  the  lands  con- 
fiscated was  to  be  applied  toward  the  maintenance  of  piers, 
walls  and  banks  against  the  ravages  of  the  sea.  All  these  acts 
are  careful  to  save  the  rights  of  strangers,  but  fail  to  recog- 
nise a  right  of  reversion  in  the  original  donors  or  their  heirs.^-'' 

§  594.  Virg-inia  leg-islation.— There  are  a  few  cases  in  the 
history  of  American  legislation  Avhich  throw  some  light  on 
the  constitutional  aspects  of  the  secularisation  of  ecclesiastical 
property. 

In  Virginia  the  Episcopal  Church  had  become  established 
during  the  colonial  period,  and  under  legislative  sanction  projv 
erty  had  become  vested  in  the  various  parishes.  At  the  time 
of  the  Revolution,  the  rights  of  the  church  to  all  its  property 
were  confirmed  and  several  statutes  were  passed  from  1784 
to  1788  for  the  vesting  of  such  property  in  appropriate  church 
authorities.  In  1798  however  all  these  confirmatory  acts  were 
repealed  as  inconsistent  wnth  the  constitution  and  the  princi- 

35  Burnet,  History  of  Reformation     T,  260. 


616  SOCIAL  AND  ECONOMIC  REFORMS.  ^  595 

pies  of  religious  freedom,  and  in  1801  the  legislature  passed 
an  act  claiming  the  right  of  the  state  to  all  the  property  of 
the  Episcopal  Churches,  and  directed  the  overseers  of  the 
poor  to  sell  all  vacant  glebe  lands  and  appropriate  the  pro- 
ceeds to  the  use  of  the  poor  in  the  parish.  The  United  States 
Supreme  Court,  in  a  case  coming  from  that  portion  of  the 
District  of  Columbia  formerly  belonging  to  Virginia,  held  the 
acts  of  1798  and  1801  inoperative  to  divest  the  church  of  the 
j)roperty  acquired  previous  to  the  revolution. ^^  In  the  state 
of  Virginia  itself,  this  legislation,  though  with  considerable 
doubt  and  division  of  judicial  opinion,  was  sustained  and 
finally  acquiesced  in.^^ 

§  595.  Pawlet  v.  Clark.— A  different  disposition  was  made" 
of  a  case  coming  from  Vermont.  A  Royal  Charter  of  1761 
had  granted  lands  in  the  township  of  Pawlet  in  the  then  Prov- 
ince of  New  Hampshire  in  a  number  of  shares,  among  them 
"one  share  for  a  glebe  for  the  Church  of  England  as  by  law 
established."  After  the  Revolution  the  township  fell  to  Ver- 
mont. Vermont  in  1794  granted  to  the  towns  of  the  state  the 
entire  property  of  the  glebes  therein  situate  for  the  use  and 
support  of  religious  worship;  and  by  another  statute  of  1805 
changed  the  grant  for  the  use  of  the  seliools  of  the  towns. 
This  act  was  upheld  upon  the  ground  that  from  the  time  of 
the  charter  to  the  act  of  1794  there  existed  no  episcopal  church 
in  the  town  of  Pawlet,  and  that  before  the  erection  of  such 
church,  the  state  of  Vermont,  as  the  successor  to  the  rights 
of  the  Crown,  with  the  assent  of  the  town,  had  power  to  ap- 
propriate the  land  to  other  uses.  The  original  grant  in  other 
words  was  held  imperfect  for  want  of  a  grantee  capable  of 
taking. 3**  A  grant  by  a  charter  of  the  same  year  to  a  duly  in- 
corporated society  was  lield  to  be  irrevocable.-'"' 

5!  596.  The  Mormon  Church  case.  — Tii  the  case  of  th(>  Mor- 
mon ("luircji  llic  Supreme  Court  had  to  deal  with  an  net  of 
f('(h'ral  h'gishition.  The  Churcli  of  Jesus  C'hrist  of  tiu'  Latter 
Day  Saints  had  Ix'cn  organised  in  IS;")!  by  an  act  or  ordinance 
of  the  so-called  state  of  Drseret   which  was  confirmed  by  the 

•■'"Torrett    v.  T.iylnr,  '.1  ('r.incli    f:?,  :<«  f.iwlcf     v.     Clnrk,     0     Cr.     292, 

ISlf).  IS  If). 

^■7 'ruipiii    V.    Lu.kct,    li    <';ill    IK!,  •''"  Socioty    for    tlir     l'r()[i.    of    the 

1804;    Sfldoii    v.   OvorHMTH   of    Poor,  (!os|)cl  v.   New  Haven,  8  Wb.  464. 
11  Lc-iKli  132,  1840. 


§  59G  MORMON  CHURCH  CASE.  617 

territorial  legislature  of  Utah  in  1855.  The  act  of  Congress 
organising  the  territory  had  provided  that  all  its  laws  should 
be  submitted  to  Congress  and  upon  disapproval  by  it  should  be 
null  and  void."**^  It  was  not,  however,  until  18G2  that  Congress 
acted.  By  act  of  July  1,  1862,  it  disapproved  and  annulled  the 
incorporating  ordinance  of  the  state  of  Deseret  of  1851,  and  the 
confirmatory  territorial  act  of  1855,  and  all  other  acts  estab- 
lishing, maintaining  or  countenancing  polygamy;  and  it  pro- 
vided that  no  corporation  or  association  for  religious  or  char- 
itable purposes  should  hold  real  estate  of  greater  value  than 
$50,000,  and  that  all  real  estate  held  in  contravention  of  this 
provision  should  be  forfeited  and  escheat  to  the  United 
States.^'  After  an  interval  of  twenty-five  years  Congress  in 
1887  undertook  to  carry  into  effect  the  previous  act  of  1862. 
By  statute  of  March  3d  of  that  year  it  dissolved  the  corpora- 
tion of  the  church  of  Jesus  Christ  of  Latter  Day  Saints,  and 
directed  proceedings  to  be  taken  for  winding  up  its  affairs 
and  for  forfeiting  and  escheating  its  property  held  in  violation 
of  the  act  of  1862  (excepting  property  held  exclusively  for 
purposes  of  worship  or  burial)  ;  such  property  to  be  disposed 
of  for  the  benefit  of  the  common  schools  of  the  territory.^^ 
Suit  was  brought  accordingly  by  the  United  States,  and  it 
was  found  that  all  property  had  been  acquired  since  1862,  and 
that  only  one  piece  was  used  for  religious  purposes ;  a  receiver 
was  accordingly  appointed.  Upon  appeal  to  the  Supreme 
Court,  the  decree  of  the  lower  court  was  sustained.^^  It  was 
held  that  under  the  act  of  1862  the  corporation  could  be  legally 
dissolved,  and  that  its  real  propertly  was  liable  to  pass  to  the 
United  States,  whether  upon  the  theory  of  forfeiture  for  viola- 
tion of  law,  or  upon  that  of  reverter  as  a  consequence  of  cor- 
porate dissolution,  the  United  States,  through  the  Town  Site 
Act,  having  been  the  donor  of  the  corporate  lands ;  and  that 
the  personal  property  ceased  to  be  the  subject  of  private  own- 
ership and  became  subject  to  the  disposal  of  the  sovereign ; 
that  in  accordance  with  general  principles  of  jurisprudence 
the  proper  and  lawful  disposition  of  all  this  property  was  to 
devote  it  to  other  public  beneficial  uses,  and  that  the  appropri- 

40  Act  Sept.  9,  1850,  §  6?  n  Stat.  •»:!  Mormon   Church    (the   late  Cor- 

,it  L.  p.  453.  poration  &c.)    v.  United  States,   136 

4112  Stat,  at  L.  501.  U.  S.  1. 
4-'  T  Suppl.  Rev.  Stat.  p.  568. 


618  SOCIAL  AND  ECONOMIC   REFORMS.  §  597 

atiou  of  such  property  as  had  been  forfeited  and  escheated 
to  the  United  States,  to  common  sciiool  purposes,  Avas  within 
the  power  of  Congress.  This  suit  did  not  determine  which  of 
the  property  became  forfeited  or  escheated ;  nor  did  the  Su- 
preme Court  decide  what  Avas  the  proper  mode  of  disposition 
of  the  non-forfeited  property.  These  questions  seem  to  have 
received  no  further  judicial  determination,  for  by  resolution 
of  October  25,  1893,  Congress  restored  to  the  Church  all  per- 
sonal property  on  condition  that  polygamy  should  be  no  longer 
sanctioned,  and  by  act  of  March  26,  1896,  the  real  property  was 
restored."** 

LEGISLATIVE    POWER    OVER  ELEEMOSYNARY   TRUSTS. 

§§  597-601. 

§  597.  Eleemosynary  trusts  under  the  Dartmouth  College 
doctrine. — The  extent  of  the  legislative  power  over  corporate 
or  trust  property  held  for  eleemosyn;iry  ])urposes  can  hardly 
be  regarded  as  definitely  settled. 

In  the  case  of  The  Trustees  of  Dartmouth  College  v.  Wood- 
ward,^'^  in  which  the  whole  question  Avas  most  fully  discussed, 
the  eleemosynary  trust  Avas  vested  in  a  corporation  created  by 
royal  chartei-.  The  act  of  the  legislature,  the  validity  of 
AA'hich  Avas  attacked,  primarily  attenii)ted  the  alteration  of  the 
constitution  of  the  corporation,  by  changing  its  name,  ils  gov- 
erning body,  and  some  principles  and  details  of  managenu^nt; 
but  its  purpose  Avas  not  to  destroy  the  trust  itself,  or  to  ap- 
j)ropriate  the  property  to  uses  alien  to  iho  intentions  of  tlie 
founder.     The  Supreme  Court  held  that  the  particular  consti- 

•"  In  the  case  of  tlio  supjirossioii  jjivers  should  be  assigned  to  oilier 
of  the  order  of  the  Kniglits  Templar  men  of  holy  religion  to  the  iiit(>iit 
in  the  beginning  of  the  1  fth  century,  that  their  jirofits  might  he  ch'Xdtcd 
it  waH  aflirincd  liy  Ihf  juilgcs  of  and  charit.ahly  disposed  Id  dliicr 
England  that  the  King  and  the  lords  godly  uses.  Tlic  l.inds  were  there- 
of the  fees  might  well  and  lawfully  fore  by  statute  vested  in  the  onler 
retain  the  lands  of  the  order  as  their  of  tlie  Hrelhren  of  the  Hos)  ital  of 
escheats,  in  consequence  of  the  dis-  St.  .Tohu.  (Slatutiim  de  lerris  teni- 
solution  of  the  order,  but  lieeiinse  plaricuiitn,  17  Ivl.  II,  St.  .'>,  1:{J4.) 
said  lands  had  been  given  for  the  Here  as  in  the  Mormon  ('hundi  case 
dcfenc(!  of  (Christians,  it  seenie<!  In  we  find  ;i  clniin  of  abscdute  right, 
the  King  and  the  lords  fdi'  the  but  ;i  disposition  preserving  the 
health  of  llieir  souls  ;itid  the  dis  piiipcrty  to  its  oiigin;ii  or  Id  rci;ited 
•■Iwirge  of  tlu'ir  i-onscicnces,  that  s:iid  uses. 
lands  according    to   the   wills  of   the  ''-4  Whe:it.  .IbS,   1819. 


§  597  ELEEMOSYNARY  TRUSTS.  619 

tution  of  the  cori)orati()ii  \v;is  an  essential  part  of  its  eliarter, 
and  4;hat  this  charter  constituted  a  contract.  Justice  Story 
seems  to  intimate^"  that  witli  the  assent  of  the  corporation 
the  object  of  the  legislature  could  have  been  accomplished,-''' 
and  that  the  act  would  also  have  been  valid  under  a  jjower 
of  amendment  or  repeal  reserved  in  the  charter.  FoUowinj^ 
the  latter  suggestion,  most  states  have  since  made  such  reser- 
vation in  granting  corporate  charters. 

It  appears  that  the  decision  in  itself  does  not  determine  the 
question  in  how  far  the  objects  of  the  eleemosynary  founda- 
tion are  protected,  or  in  how  far  they  are  subject  to  legislative 
control  under  a  reserved  power  over  corporate  charters. 

The  former  question  was,  however,  very  fully  discussed  in 
the  opinions  delivered.  The  contract  between  the  state  and 
the  corporation  itself,  consisting  in  the  charter,  was  evidently 
not  the  only  one  which  the  court  recognised  as  entitled  to  con- 
stitutional protection;  while  Chief  Justice  ^larshall  in  one 
place  speaks  of  a  contract  between  the  King  (state)  and  the 
trustees,"*^  he  in  another  place  says:  "This  is  plainly  a  con- 
tract to  which  the  donors,  the  trustees,  and  the  crown  were  the 
original  parties,"^'*  and  in  still  another  passage^'^  he  lays  all 
stress  upon  the  contract  made  between  the  donors  and  the 
trustees  for  the  benefit  of  education.  It  is  admitted  that  the 
case  is  not  quite  so  clear  as  that  of  a  gift  to  an  individual : 
"Neither  the  founders  of  the  college  nor  the  youth  for  whose 
benefit  it  was  founded  complain  of  the  alteration  made  in  its 
charter,  or  think  themselves  injured  by  it.  The  trustees  alone 
complain,  and  the  trustees  have  no  beneficial  interest  to  be 
protected."'  But  the  difficulty  arising  from  the  want  of  a 
definite  beneficiary  is  overcome  by  the  establishment  of  thj 
"body  corporate  as  possessing  the  whole  legal  and  equitable 
interest,  and  completely  representing  the  donors,  for  the  pur- 
pose of  executing  the  trust."-  Yet  a  valid  and  binding  con- 
tract seems  to  exist  even  irrespective  of  the  fact  of  incorpora- 
tion.    "The  founders  of  the  college     *     *     *     contracted  for 

46  p.  712.  48  p.  638. 

^"^  The   assent    of   the   corporation  *^  p.  643. 

would  not  excuse  a  perversion  of  the  ^o  p.  64G. 

original  purposes  of  the  foniulation;  ip.  641. 

State  V.  Adams,  44  Mo.  570;   Ponn-  -  p.  654. 
sylvania  College  Cases,  13  Wall.  190. 


620  SOCIAL  AND  ECONOMIC  EEFOEMS.  §  593 

the  perpetual  application  of  the  funds  which  they  gave  to 
the  objects  for  which  those  funds  were  given.  "^  "ReMgion, 
Charity,  and  Education,  are,  in  the  law  of  England,  legatees 
or  donees,  capable  of  receiving  bequests  or  donations  in  this 
form.  They  appear  in  court,  and  claim  or  defend  by  the  cor- 
poration. Are  they  of  so  little  estimation  in  the  United  States 
that  contracts  for  their  benefit  must  be  excluded  from  the 
protection  of  words  which  in  their  natural  import,  include 
them?"'^  In  the  opinion  of  Justice  Washington  eleemosynary 
trusts  are  inviolable  because  the  powers,  rights  and  privileges 
incident  to  them  flow  from  the  property  of  the  founder  in  the 
funds  assigned  for  the  support  of  the  charity.^  It  is  impossible 
to  escape  the  conclusion  that  the  court  considered  property 
vested  in  trustees  for  eleemosjmary  purposes  as  protected  upon 
the  theory  of  contract  with  or  without  incorporation;  in  fact 
the  argument  of  the  court  is  directed  to  showing  that  the 
fact  of  incorporation  cannot  be  relied  upon  as  a  basis  for  the 
exercise  of  legislative  powers  which  the  court  plainly  assumes 
could  not  be  claimed  without  it.*' 

If  it  may  then  be  assumed  that  eleemosynary  trusts,  whether 
incorporated  or  unincorporated,  enjoy  the  fullest  constitu- 
tional protection  under  the  doctrine  of  the  Dartmouth  College 
case,  the  further  question  arises :  is  this  j)rotection  impaired 
or  taken  away  through  incorporation  under  laws  which  re- 
serve to  the  legislature  full  power  of  amendment  and  repeal 
over  the  charter? 

5;  598.  Doctrines  laid  down  in  Mormon  Church  case.— Thi> 
only  (lecisimi  (if  llic  Supreme  Court  of  the  United  States  which 
1hrf)ws  ligiit  upon  that  (lucstion  is  the  one  rendered  in  the 
^lormon  Church  case."  Here  the  act  incorporating  an  elee- 
mosynary corporation  Avas  disapproved  and  annulled  by  Con- 
gress in  the  exercise  of  a  general  power  reserved  in  the  act 
estalilisliing  the  territorial  governuKMit  of  T^tah,  and  the  corpo- 
r;i1i<in  itsrll'  wms  snl)sc(|iicMl  I y  dissolved.  It  is  lo  be  noted  llnil 
Congress  directed  that  the  titli'  lo  re.il  |tfoperl.\-  held  und  nsed 
for  |)I;k'('s  of  worship,  parsonages  nnd  l»iii-i,il  grounds  should 
he   transferred    to   trustees  and    eoiiliniicd    For   the   s.-iine    \)\\v- 

■'F».  fi52.  7  .M„riii.)ii    Clmrcii     (tlic    l;itc    (Jor- 

«p.  046.  imrafinn   &c.)    v.  United  Stiites,   136 

r-  p.  661.  U.  S.    1. 
»  p.  6^.."),  (;:',M. 


§  599  EFFECT  OF  RESERVED  PUWER.  G21 


( 


poses.  With  regard  to  property  not  so  reserved  the  Suprenn^ 
Court  laid  down  the  principle  that  the  personal  property 
ceases  to  be  the  subject  of  private  ownership  and  becomes 
subject  to  the  disposal  of  the  sovereign  authority,  and  that 
the  real  estate  reverts  to  the  donors  or  grantors  subject  to  the 
charitable  use.  If  the  particular  charitable  use  to  which  the 
corporation  has  devoted  its  property  is  unlawful  or  impracti- 
cable, the  Supreme  Court  holds  that  its  application  to  cognate 
purposes  (in  this  instance  educational)  may  be  directed.  Tin- 
court  admits  that  in  some  states  in  that  case  the  property 
would  revert  to  the  donor  or  his  heirs  discharged  of  any 
trust;  but  it  declares  that  this  doctrine  cannot  be  applied 
where  the  fund  is  accumulated  from  numberless  small  contri- 
butions so  that  the  donors  cannot  be  ascertained,  and  with 
regard  to  real  estate  the  doctrine  would  be  immaterial  in  the 
present  ease,  since  the  land  of  the  dissolved  corporation  was 
originally  granted  by  the  United  States  and  would  therefore 
fall  to  it  even  under  the  right  of  reversion. 

§  599.  Effect  of  reserved  power  over  corporate  charter.— 
The  whole  tenor  of  the  decision  negatives  the  claim  of  power 
to  dissolve  an  eleemosynary  corporation  in  such  a  manner  as 
to  destroy  the  charitable  trust  for  which  it  has  been  created, 
])rovided  such  trust  continues  to  be  lawful  and  practicable. 
In  such  a  case  the  reserved  power  over  the  corporate  charter 
seems  to  extend  no  farther  than  to  authorise  such  alterations 
in  the  administration  of  the  trust  as  wnll  not  destroy  either 
its  individuality  or  its  main  object.^  Thus  it  has  been  held 
that  under  a  reservation  of  power  the  legislature  cannot 
change  a  female  seminary  into  a  mixed  school,"  nor  direct  the 
]iroperty  of  one  educational  institution  to  be  administered  by 
tlie  trustees  of  another  upon  the  plea  that  such  consolidation 
would  better  subserve  the  purposes  of  education.'*'  Where 
the  original  object  of  the  trust  has  ceased  to  exist  or  to  be 
l^racticablc  (as,  e.  g.,  a  trust  for  the  manumission  of  slaves  or 

*<  State    V.    Adams,    44    Afo.    .570,  sistent    \vith    the    purposes    of    the 

582;  Allen  v.  McKeen,  1  Siinin.  276,  charter. 

1833.      In    Miller   v.    New   York,    15  !» Webster    v.    Cambridge    Female 

Wall.   478,   the   Supreme   Court   said  Seminary,  78  Md.  193. 
that    the    reserved    power    will    not         lo  Ohio    v.    NefF,    52    Oh.    St.    375 

warrant     legislation     to     direct     the  (case   of   Cincinnati    College).      See 

funds  of  donors  to  new  uses  incon-  also     Graded     School     District     v. 


622  SOCIAL  AND  ECONOMIC   KEFOEMS.  §  600 

for  the  redemption  of  persons  captured  by  pirates)  the  power 
of  a  court  of  equity  to  direct  the  application  of  the  property 
to  similar  or  cognate  uses  instead  of  having  it  revert  to  the 
original  donor  or  his  heirs,  is  asserted  in  some  jurisdictions 
and  denied  in  otli^rs,i^  but  the  power  of  the  legislature  to 
provide  in  such  a  case  for  the  disposition  of  the  property  in 
its  discretion  does  not  appear  to  have  been  denied  b}'^  any 
court. 

§  600.  Trust  objects  becoming  contrary  to  public  policy.— 
But  is  it  competent  for  the  legislature  to  destroy  or  alter  a 
trust  once  validly  created  upon  the  ground  that  under  changed 
ideas  of  public  policy  the  accomplishment  of  the  object  em- 
bodied in  the  trust  appears  to  be  unlawful  ?  The  answer  to 
this  question  should  not  be  doubtful,  if  the  policy  in  opposi- 
tion to  the  trust  is  justifiable  upon  the  general  principles  of  the 
police  power.  Even  conceding  that  the  trust  involves  a  con- 
tract between  the  donor  and  the  trustees,  private  parties  can- 
not be  allowed  by  their  contracts  to  hinder  or  obstruct  a  course 
of  legislative  policy  which  would  be  otherwise  legitimate.  Thus 
it  is  clear  that  a  trust,  valid  in  its  inception,  to  establish  a 
school  for  the  common  education  of  white  and  colored  chil- 
dren, would  have  to  yield  to  n  hnv  re(|uiring  iho  separation  of 
the  races  in  schools. 

If  the  trust  were  incorporated,  it  is  true  that  under  the 
doctrine  of  the  Dartmouth  College  case  the  state  itself  would 
be  a  party  to  the  contract,  but  even  without  a  reserved  power 
this  contract  would  probably  give  way  to  the  exercise  of  the 
police  power.  Since  in  charitable  trusts  there  are  as  a  i-ule 
no  specific  persons  who  are  entitled  to  the  benefit  of  the  en- 
dowment, they  do  not  seem  to  be  Avithin  the  letter  or  spirit 
of  the  Fourteenth  Amendment,  which  speaks  only  of  depi-iving 
persons  of  property.  There  is  good  reason  for  protecting  the 
proixTly  rights  of  persons,  for  all  persons  ;if('  (Mpinl  l)efor(' 
tbc  law,  and  as  persons  die  the  l;iw  can  conti-ol  nnd  prolect 
future  generations  through  its  absolute  power  over  llie  devolu- 
tion of  pi'opcrt.N-  ])>■  death:  and   if  certain  forms  of  individual 

TnistooH    of    Unickcn    ,\c;iiloniy.    O-T      New  .Jersey  citnl  l.y  .TuHticn  Bnulley 
Ky.  4.'in,  iind  ('ary  Library  v.  liliss,      in   iriO  U.  S.  ]>.  (id. 
IT)!    MaHH.    .^^).'");    l))it    hcc  flic   :ic(h   of  "Sec   review   of  eases   in   .TaeltHon 

V.  I'liillips,  14  Alien  539,  p.  580-596. 


§  601  POWER  OVEK  ELEEMOSVNAKY    TRUSTS.  623 

property  become  detrimental  to  the  community,  they  can  be 
taken  from  individuals  on  payment  of  compensation. 

But  purposes  and  interests,  thoufili  incorporated  and  en- 
dowed with  legal  personality,  have  no  claim  to  constitutional 
equality,  they  do  not  die,  and  the  exercise  of  the  power  of 
eminent  domain  would  be  of  no  avail,  since  compensation 
Avould  not  change  the  purpose.  As  long  as  a  purpose  is  re- 
garded as  lawful  it  should  be  secured  from  spoliation,  l)ul 
there  ought  to  be  constitutional  power  to  prevent  the  perpetu- 
ation of  interests  which  are  found  to  be  detrimental  or  use- 
less to  the  public.  The  police  power  should  therefore  be  held 
to  extend  to  the  abrogation  of  eleemosynary  trusts  and  foun- 
dations under  proper  safeguards  against  the  abuse  of  this 
power.  The  safeguard  most  in  accordance  with  our  consti- 
tutional principles  would  be  the  formulation  of  the  conditions 
justifying  state  interference  by  general  law,  and  judicial  pro- 
ceedings establishing  the  existence  of  one  of  these  conditions 
in  each  particular  case. 

§  601.  English  legislation.— Even  in  England  where  the  leg- 
islature pays  the  most  scrupulous  regard  to  the  sanctity  of 
vested  rights,  some  concession  has  been  made  to  the  legitimate 
demand  that  the  state  ought  to  be  able  to  control  endowments, 
which  have  outlived  their  usefulness.  It  is  provided  by  the 
Endowed  Schools  Act  1869^2  that  the  Endowed  School  Com- 
missioners (since  1874  the  Charity  Commissioners)  shall  have 
power  in  such  manner  as  may  render  any  educational  en- 
dowment most  conducive  to  the  advancement  of  education,  to 
alter  and  add  to  any  existing,  and  to  make  any  new  trusts,  di- 
rections and  provisions,  including  the  consolidation  and  di- 
vision of  endowments.^  '■^  But  in  the  case  of  endowments  created 
less  than  fifty  years  before  the  passage  of  the  act,  the  govern- 

12  32  and  33  Vict.  ch.  56.  use     that     which     a     member     or     a 

13  §  9  of  Act.  stranger  has  given  for  a  specific  ob- 
ATo^^.-Power    over    eleemosynary     J<^ct.  ^"^  ^  different  purpose. 

trusts  by  Prussian  law.  §  74.     In    how    far    under   altered 

The    following    provisions    of    the  circumstances    the    state,    after    the 

Prussian  Landrecht    (Part  II,  Title  death   of   the   donor,   may   vary   the 

YJ)    illustrnte  the  iiriin-iples  of  the  purpose  of  the  trust,  is  to  be  judged 

German  law  regarding  the  power  of  by  the  principles  of  §  193. 

the  state  over  eleemosynary  trusts.  §  7,5.     In   all  eases  in   which   such 

§  73.     The    corporation    may    not  disposition    is    intended,    the    corpo- 


624 


SOCIAL  AND  ECONOMIC  REFORMS. 


§602 


ing  body  must  assent  to  the  new  scheme.  The  scheme  of  legisla- 
tion submitted  to  Parliament  had  specified  the  principal  condi- 
tions imder  which  interference  would  be  called  for  and  be  justi- 
fiable :  where  the  original  purpose  has  failed ;  where  the  founda- 
tion creates  pauperism  and  immorality ;  Avhere  foundations, 
being  insufficient  in  value,  may  usefully  be  united  with  oth- 
ers; where  in  foundations  which  are  sixty  years  old  there 
are  no  beneficial  rjesults  or  the  benefits  are  insignificant  com- 
pared to  the  value  of  the  foundation. 

In  America  the  theory  of  contractual  protection  might  be 
found  to  be  an  obstacle  to  the  recognition  of  the  two  condi- 
tions last  mentioned  as  justifying  an  interference  with  estab- 
lished trusts,  except  under  a  reserved  power  of  alteration, 
where  the  trust  is  incorporated. 


ration  must  first  be  heard,  and  its 
opinion  must  not  be  departed  from 
without  a  preponderance  of  reasons. 

§  76.  The  corporation  may  not  of 
its  own  authority  depart  from  the 
means  prescribed  for  the  realisation 
of  the  objects  of  the  trust. 

§  77.  The  state  itself  may  alter 
these  means  and  arrangements  only 
where  it  clearly  appears  that 
through  them  the  object  cannot  be 
accomplished  or  will   fail. 

§  78.  If  provisions  are  made  in 
favor  of  certain  definite  persons, 
they  cannot  be  departed  from  with- 
out the  consent  or  full  compensation 
of  such  persons. 

§  189.  If  the  object  of  a  corpo- 
ration prescribed  in  its  charter  can 
no  longer  be  accomplished,  f)r  fails 
entirely,  the  state  may  dissolve  it. 

§  190.  The  same  is  true,  if  this 
object,  on  account  of  nltcrcd  cir- 
cumHtanccs,  l)oconics  manifestly  dof- 
rimciital  to  tlie  pul>iic  welfare. 

§  191.  If  the  accomplishment  of 
the  object  is  merely  hindered  liy 
.•ibnses  or  defects  of  the  constitii- 
lion,   the  state   is   merely   entiflcfl    to 


jirovide  the  necessary  measures  for 
the  removal  of  the  defects  or  the 
restoration  of  good  order. 

§  192.  If  a  corporation  is  alto- 
gether dissolved,  and  no  other  pro- 
vision regarding  its  property  is 
made  by  the  charter  for  this  con- 
tingency, the  property  escheats  to 
the  state,  to  be  otherwise  applied 
to  the  public  good. 

§  193.  If,  however,  there  arc 
money  or  other  things,  that  have 
been  entrusted  to  the  administration 
of  the  dissolved  corporation  for  a 
certain  definite  object,  the  state 
must  take  care  that  the  purpose  of 
the  donor,  according  to  the  condi- 
tions prescribed  by  him,  be  further 
carried  out  as  far  as  possible. 

§  194.  If  the  state  cannot  or  will 
not  do  this,  tlic  donor  or  his  heirs 
may  recover  the  trust  i)roperty  or 
funds. 

§  19.1.  Ff  tlic  donor  is  no  longer 
in  existence,  ami  liis  licirs  cannot  he 
ascertained,  the  property  of  the 
former  trust  belongs  to  the  state  as 
ownerless  projicrty,  in  accordance 
with  the  principles  of  §  192. 


i^  602  SUMMAJiV.  G25 

§  602.  Summary  of  principles  regarding  property  under 
the  police  power.— The  principles  regarding:'  llir  i-dMlion  of 
the  constitutional  protection  of  property  lo  llic  jtolici'  powci- 
may  be  briefly  summarised  as  follows: 

1.  The  purposes  for  which  th(>  police  power  may  be  exer- 
cised do  not  justify  the  taking  of  lawful  i)roj)er1y  without 
compensation. 

2.  Confiscatory  regulation  is  equivalent  to  taking,  but  rea- 
sonable regulation  leaving  the  owner  in  substantial  enjoyment 
of  his  property,  though  diminishing  its  returns,  is  legitimate 
without  compensation. 

3.  Things  imminently  dangerous  or  offensive,  and  serving 
no  useful  purpose,  have  no  status  as  property  and  therefore 
enjoy  no  constitutional  protection  (nuisances  per  se). 

4.  The  continuance  in  an  established  business  may  be  for- 
bidden without  compensation,  if  the  interests  of  health,  safety 
or  morals  make  its  suppression  desirable,  although  it  is  not  a 
nuisance  per  se;  the  disposition  of  an  article  may  be  forbidden 
under  like  conditions. 

5.  A  public  license  or  grant  authorising  the  doing  of  a 
thing  prejudicial  to  health,  safety  or  morals,  is  subject  to  revo- 
cation without  compensation. 

6.  A  contractual  obligation  cannot  be  impaired  for  the 
benefit  of  the  party  obligated ;  but  otherwise  a  proper  exer- 
cise of  the  police  power  is  not  rendered  unlawful  by  the  fact 
that  it  makes  impossible  the  performance  of  contracts  entered 
into  by  a  person  affected  thereby. 

7.  A  lawful  trust  cannot  be  impaired  unless  it  is  organised 
under  a  corporate  charter  which  is  subject  to  a  reserved  power 
of  alteration  or  repeal. 

The  following  is  submitted  as  preferable  to  the  principles 
formulated  in  rules  4  and  5,  and  in  rule  7 : 

An  established  business,  lawful  when  established,  or  estab- 
lished under  a  license  of  reasonable  duration,  constitutes  a 
vested  right  of  property,  and  its  continuance  cannot  be  for- 
bidden under  a  changed  legislative  policy  without  compensa- 
tion. 

Where  property  is  held  upon  eleemosynary  trusts,  and.  in 
accordance  with  principles  established  by  general  law,  it«  con- 
tinued application  to  the  original  uses  is  found  to  be  detri- 
mental or  useless  to  the  public,  its  application  to  different 
eleemosynary  uses  may  be  required. 

40 


FUNDAAIENTAL  RIGHTS. 
THIRD :     EQUALITY. 

CHAPTER  XXVIII. 

EQUALITY  AS  A  POLITICAL  PRINCIPLE. 

§  603.  Social  and  natural  inequality.— A  number  of  state 
constitutions,  following  the  words  of  the  Declaration  of  Inde- 
pendence, contain  the  statement  that  all  men  are  created  equal. 
The  idea  of  a  natural  equality  of  men  has  been  a  powerful 
factor  in  bringing  about  legal  equality ;  but  the  recognition  of 
the  hitter  does  not  imply  assent  to  the  former.  The  recogni- 
tion of  a  natural  inequality  has  become  a  problem  of  great  po- 
litical importance  only  since  essentially  different  races  have 
come  to  live  together  under  governments  recognising  in  theory 
the  principle  of  equal  rights.  The  Ikiropean  states  have  always 
had  to  deal  within  their  several  jurisdictions  wnth  populations 
which  from  a  racial  point  of  view  have  been  essentially  upon 
the  same  level.  The  inequality  of  classes  which  formerly  con- 
trolled their  political  systems  w^as  social  and  not  natural.  The 
institutions  of  property,  iiilu'ritance  and  the  family  make 
it  possible  to  add  inequality  of  classes  to  the  natural  in- 
equality of  individuals,  and  to  deprive  the  latter  of  its  due 
effect,  so  that  wealth  and  other  advantages  come  to  be  dis- 
tributed upon  the  basis  of  birth  and  social  connection  rather 
than  of  individual  merit.  It  is  easily  understood  how^  under 
a  system  of  social  ineciuality  the  idea  of  a  natural  equality 
nuiy  arise  as  a  protest  against  the  injustice  of  the  former,  and 
become  attractive  to  many  minds. 

Social  distinctions  are  inseparable  from  the  institutions  of 
family  and  property,  and  exist  in  all  ilemoeratic  states;  if  in 
such  states  they  are  less  pronounced  than  in  others,  it  is  be- 
cause of  e(|ii;il  ('(lucatioiuil  facilities,  manifold  opi)or1uuities  to 
ac(|uire  we;iltli.  absence  of  caste  and  class  prejudice,  and  the 
fjenial  of  special  legal  and  political  advantages.' 

§604.  Political  inequality.  — The  mediaeval  political  system 
was  base<l  ii|)oii  the  icLialisalion  and  eonsfMpient  crystallisation 

1  RouHseau  Social  fontract,  II.  If.  destroy  equality,  that  the  force 
11.  "It  is  precisely  bocausr  (lie  of  icj^islation  on^jlit  always  to  toiul 
ff.icc  (if  circiimstanceH  teiuls  always      to  maintain  it." 

626 


§605  EQUALITY    rX   HUROI'H.  627 

of  social  in('(|ualities,  and  the  recojiiiition  of  llic  "estates"  as 
essential  factors  in  the  constitution.  The  different  classes  were 
perpetuated  by  descent,  transition  from  one  to  the  other  was 
impossible  or  beset  Avith  legal  obstacles,  the  same  pursuits  were 
not  open  to  all,  they  were  subject  to  different  rules  of  law  in 
property,  procedure,  and  police,  they  had  unequal  shares  in  po- 
litical representation,  and  the  loAver  classes  had  no  share  in  it 
at  all.  The  higher  classes  enjoyed  )nanif()ld  ])rivileges  and 
exemptions,  the  lowest  were  subject  to  burdens  and  services. 
The  controlling  places  in  the  government  were  practically  re- 
served to  those  of  the  highest  rank.  In  monarchical  countries 
the  system  culminated  in  the  crown  and  the  court,  essentially 
social  institutions.  The  crown,  as  the  source  of  honor  and  dig- 
nities, could  raise  from  the  lower  ranks  to  the  higher,  but  it 
was  not  as  in  the  oriental  despotisms  a  levelling  factor.  And 
so  the  tendency  of  the  ]\Tiddle  Ages  was  to  make  the  economic 
divisions  of  society  the  basis  of  legal  status,  and  to  make  that 
status  hereditary. 

§  605.  Equality  in  England.— Under  the  English  constitu- 
tion, many  of  the  features  just  stated  were  much  mitigated 
or  did  not  exist  at  all.  The  onl}'  substantial  privilege  enjoyed 
by  the  nobility  was  the  hereditary  right  to  sit  in  the  House  of 
Lords,  and  in  consequence  of  the  system  of  primogeniture  there 
was  a  close  social  connection  between  nobility  and  gentry.  At 
the  opposite  scale,  villenage  and  serfdom  disappeared  as  early 
as  the  fifteenth  century,  and,  barring  comparatively  unimpor- 
tant exceptions  created  by  such  police  measures  as  the  statutes 
of  laborers,  and  the  liability  of  sailors  to  be  impressed  for  serv- 
ice in  the  navy,  all  Englishmen  enjoyed  an  equal  measure  of 
personal  freedom.  Property  ([ualiHcations  were  required  for 
the  exercise  of  the  electoral  fi-anehise  and  for  jury  service,  and 
the  most  important  administrative  office,  that  of  Justice  of 
the  Peace,  was  reserved  to  the  landed  gentry';  but  while  the 
common  law  recognised  as  a  matter  of  form  and  name  differ- 
ent social  grades,^  the  rules  of  property,  of  procedure,  and 
of  crimes,   were  practically  the  same   for   all.-"      Thus   it   has 

2  Blackstone  I,  403-407.  Marriage  Bill    (1753),  the  attorney 

•■*  This    became    true    in    course    of  general  said:      "Tf  it  were  possible 

time   also    of    the   benefit    of   clorojy.  I    coiifess    that   a    ilistinction    should 

— In  the  course  of  the  discussion  in  bo    tiiadc    between    the    marriage    of 

Parliament     of     Lord     Hard\\4cke's  people    of    riuik    and     fortune    and 


628  EQUALITY  AS  A  POLITICAL  PRINCIPLE.  §  606 

come  that  equality  has  never  been  a  great  issue  in  the  consti- 
tutional history  of  England. 

§  606.  Equality  in  France.— In  France,  the  privileges  and 
exemptions  of  the  nobility  and  the  excessive  burdens  thrown 
upon  the  lower  classes,  together  with  gross  violations  of  the 
right  of  personal  liberty,  constituted  the  great  grievances  which 
led  to  the  French  Revolution.  The  night  of  August  4th,  1789, 
saw  the  abrogation  of  seignorial  exactions,  privileges  and  im- 
munities. Equality  became  one  of  the  watchwords  of  French 
constitutionalism.  The  declaration  of  1789  said,  "The  law  is 
the  expression  of  the  general  will.  All  citizens  have  a  right  to 
participate  in  making  it  personally  or  by  their  representatives. 
It  must  be  the  same  for  all  whether  it  protects  or  punishes. 
All  citizens  being  equal  in  its  eyes,  are  equally  eligible  to  all 
public  dignities,  places  and  employments,  according  to  their  ca- 
pacities, and  without  other  distinction  than  that  of  their  virtues 
and  talents."  The  declaration  of  1793  enumerated  equality, 
liberty,  security  and  property,  as  natural  and  imprescriptible 
rights,  and  stated  that  all  men  are  equal  by  nature  and  before 
the  law.  The  preamble  to  the  constitution  of  1848  says :  the 
French  Republic  has  for  its  principles  liberty,  equality,  fra- 
ternity. 

The  French  publicists  find  the  principle  of  equality  embodied 
chiefly  in  the  following  rules  and  institutions:  the  universal 
suffrage;  the  equal  obligation  of  military  service;  rules  regard- 
ing promotion  in  the  army ;  apportionment  of  taxes  according 
to  ability  to  pay ;  the  establishment  of  the  governmental  schools, 
and  the  principle  of  competition  in  them  and  in  the  admission 
to  public  services;  the  equal  right  of  inheritance  of  children 
and  the  abolition  of  entails;  the  abolition  of  privileges  in  the 
matter  of  carrying  arms,  hunting  and  fishing,  and  of  jurisdic- 
tional privileges.^ 

§  607.  Equality  in  Prussia.  — In  Prussia,  as  in  the  rest  of 
Germany,  social  inequality  was  sanctioned  and  fixed  by  law 
down  to  the  beginning  of  tlir  iiinctci'iith  century.  The  nobility, 
the  burgesses,  and  the  peasants,  formed  the  three  great  estates, 
which  were  recognised  by  tin'  I'russian  code  of  1794.     While 

those  o^  the  people  wo  commonly  call  *  Ducroc<j       Didit       Admiuistratif, 

vulfjar;  but  this  is  impoHsiblc  in  this  1147 — IIT)!'. 
country,    anrl    therefore    it    was    not 
attemptefi. " 


55  608  AMERICAN  COX-STITUTIONS.  629 

this  code  contained  tlu;  statement  that  "the  hiws  of  the  state 
bind  all  its  members  without  disliiiction  of  estate,  rank  or 
sex,"  yet  it  was  not  until  1807  that  nobles  were  allowed  to  pur- 
sue common  trades,  and  that  burgesses  were  allowed  to  become 
peasants  and  vice  versa,  and  that  both  were  made  competent  to 
acquire  the  landed  estates  of  the  nobilit}'.  The  Prussian  Con- 
stitution of  1850  declares  that  all  Prussians  are  equal  before 
the  law,  and  that  class  privileges  are  not  recognised.  As  ex- 
plained by  a  writer  of  authority,-^  this  declaration  means  tliat 
laws  shall  be  applied  without  respect  of  person,  rich  or  poor, 
high  or  low,  and  that  no  law  shall  sanction  an  exception  from 
this  principle  in  favor  of  any  class,  and  that  all  political  priv- 
ileges formerly  recognised  in  favor  of  the  members  of  certain 
estates,  either  in  public  or  in  private  law,  shall  be  abrogated. 
A  special  clause  throws  all  public  employments  open  to  all  who 
are  properly  qualified,  and  another  clause  proclaims  the  prin- 
ciple that  the  enjoyment  of  civil  and  political  rights  is  inde- 
pendent of  religions  faith.  Exceptions  from  the  principle  of 
equality  are  recognised  in  favor  of  the  members  of  the  royal 
house  and  of  the  formerly  sovereign  nobility. 

§  608.  Equality  under  American  state  constitutions.— In  the 
xVmerican  colonies  social  distinctions  became  marked  with  the 
advancement  of  wealth,  but,  barring  moderate  property  qualifi- 
cations for  the  exercise  of  active  political  rights,  there  were 
no  legal  differences  in  the  status  of  white  men.  In  the  first 
state  constitutions  the  idea  of  equality  occupied  no  conspicuous 
place.  The  only  provisions  of  a  special  nature  bearing  on  the 
])rinciple  which  we  find,  are  the  denial  of  hereditary  tenure  of 
office  or  public  emoluments,  and  some  denunciations  of  monop- 
olies. Civil  equality  was  accepted  as  a  matter  of  course,  and 
so  were  the  departures  from  the  principle  of  political  equality, 
both  in  the  exclusion  of  large  numbers  from  the  franchise,  and 
in  the  status  of  the  black  race.  In  the  first  third  of  the  nine- 
teenth century  the  establishment  of  universal  manhood  suf- 
frage and  the  abrogation  of  property  qualifications  for  the 
holding  of  office  did  away  with  the  remnants  of  political  in- 
equality, and  high  office  ceased  in  fact  as  well  as  in  l.nv  to  be 
reserved  to  the  upper  classes. 

An  analysis  of  the  state  constitutions  shows  that — not  taking 
account  of  the  proclamation  of  \ho  natui"al   e(iuality  of  men 

5  Roenne,    Staatsrecht   der   preussischen  Monarchie,  §   151. 


630  EQUALITY  AS  A  POLITICAL  PRINCIPLE.  i^  609 

taken  from  the  Declaration  of  Independence— twenty  states" 
have  no  distinct  guaranty  of  equality,  the  majority  of  the 
others  prohibit  special  privileges,  two"  have  a  statement  that 
government  is  instituted  for  the  equal  protection  and  benefit  of 
the  people,  two«  guarantee  equality  before  the  law,  and  one" 
equality  of  civil  and  political  rights.  South  Carolina  copies 
the  provision  of  the  Fourteenth  Amendment  and  Wyoming  pro- 
vides as  follows:  "Since  equality  in  the  enjoyment  of  natural 
and  civil  rights  is  made  sure  only  through  political  equality, 
the  laws  of  this  state  affecting  the  political  rights  and  privileges 
of  its  citizens  shall  be  without  distinction  of  race,  color,  sex 
or  any  circumstance  or  condition  whatsoever  other  than  in- 
dividual incompetency  or  unworthiness  duly  ascertained  by  a 
court  of  competent  jurisdiction. "^'^  This  is  the  fullest  and  the 
only  adequate  formulation  of  the  principle  of  political  equality 
to  be  found  anywhere,  but  the  equality  of  civil  rights  is  like- 
wise assumed  rather  than  expressed. 

§  609.  The  Fourteenth  Amendment  and  the  Slaughter  House 
Cases.— By  the  Fourteenth  Amendment  of  the  Constitution  of 
the  United  States,  the  principle  of  equality  throughout  the 
states  has  been  placed  under  federal  protection.  The  abolition  of 
slavery  having  been  made  part  of  the  fundamental  law  by 
the  Thirteenth  Amendment,  nnd  before  the  Fifteenth  Amend- 
ment undertook  to  bestow  upon  the  former  slaves  the  active 
political  franchise,  it  was  intended  to  secure  to  them  an  o(iual 
and  just  administration  of  the  laws  on  the  part  of  the  states. 
That  a  further  reaching  effect  of  the  amendment  was  not  gen- 
erally foreseen,  appears  from  the  well-known  words  of  Justice 
Millci-  in  the  Slaughter  House  Cases i^'  "Tn  l]i(>  light  of  the 
history  of  these  amendments,  and  the  pervatling  pui-posr  ol" 
them,  wliich  we  have  already  discussed,  it  is  not  difficnll  to 
giv(^  a  meaning  to  this  clause.  The  existence  of  laws  in  the 
states  wliei-(!  the  jiewly  eiuMucipated  negroes  resided,  which  dis- 
criniinated  with  gross  injustice  and  luirdship  against  them  as 

"Colorado,  Delaware,  Illinois,   In-  "Ohio  nml   Idiilio. 

<li;in:i,    I iouisianii,   Maiiif,   MimicsolM,  «  Arkansas  ami    I'lorida. 

MJHHisHii.pi,        Missouri,        .VIi.lii>r;,ii,  i.  Alabama. 

Montana,    Nnbraska,    Nevada,     New  a    <     i    <5  -> 

,  .        ..         T  xi„...    V   ^\,  1"  Conslitntion,  Art.   I,  S  •>• 

IlainpHliiro,  New  Jersey,  New    \  nrk, 

Pennsylvania,     Uliode     Island,    West,  "  Ki  Wall.  30,  1872. 

Virginia,  Wisfonsin. 


§  610  EQUALITY  AND  EQUAL  PROTECTION.  631 

a  class,  was  the  evil  to  be  remedied  by  this  elaus(.',  and  by  it 
such  laws  are  forbidden.  If,  however,  the  states  did  not  con- 
form their  laws  to  its  requirements,  then  by  the  fifth  section 
of  the  article  of  amendment  Congress  was  authorised  to  enforce 
it  by  suitable  legislation.  We  doubt  very  much  whether  any 
action  of  a  state  not  directed  by  way  of  discrimination  against 
the  negroes  as  a  class,  or  on  account  of  their  race,  will  ever  be 
held  to  come  within  the  purview  of  this  provision.  It  is  so 
clearly  a  provision  for  that  race  and  that  emergency  that  a 
strong  case  Avould  be  necessary  for  its  application  to  any 
other." 

§  610.  Equality  and  equal  protection  of  the  laws.— In  the 
thirty  years  that  have  passed  since  the  decision  on  the  Slaughter 
House  Cases  the  equality  provision  of  the  Fourteenth  Amend- 
ment has,  however,  assumed  an  entirely  different  aspect.  The 
principle  of  equality  is  relied  upon  more  and  more  to  check  the 
exercise  of  governmental  powers,  and  the  controlling  jurisdic- 
tion of  the  federal  .supreme  court  is  invoked  with  increasing 
frequency  to  give  it  effect. 

The  precise  meaning  of  the  clause  in  question  has,  however, 
not  yet  been  defined.,  The  words  are  "nor  [shall  any  state] 
deny  to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws."  The  equal  protection  of  the  laws  does  certainly 
not  mean  equal  participation  in  government,  and  its  primary 
meaning  is  simply  equal  securitj^  in  person  and  property.  This 
narrower  conception  was  undoubtedly  most  conspicuous  in 
the  minds  of  the  framers  of  the  amendment,  and  if  the  act  of 
May  31,  1870,^  ^  jj^ay  ije  regarded  as  a  further  definition  of  the 
clause,  it  was  also  the  meaning  given  to  it  by  Congress.  The 
section  reads:  "All  persons  wathin  the  jurisdiction  of  the 
United  States  shall  have  the  same  right  in  every  state  and  ter- 
ritory to  make  and  enforce  contracts,  to  sue,  be  parties,  give 
evidence,  and  to  the  full  and  equal  benefit  of  all  laws  and  pro- 
ceedings for  the  security  of  persons  and  property,  as  is  en- 
joyed by  white  citizens,  and  shall  be  subject  to  like  punish- 
ment, pains,  penalties,  taxes,  licenses,  and  exactions  of  every 
kind,  and  to  no  other.  "^-^     These  words  are  not  absolutely  in- 

12  Now  §  1977  Eevised  Statutes.  tou,    5   Cush.    19S,    where   it    is   said 

13  This  understanding  of  the  that  the  principle  "  will  not  warrant 
equal  protection  of  the  laws  also  aji-  the  assertion  that  men  and  women 
pears  iu  the  case  of  Roberts  v.  Bos-  are    legally    clothed    with    the    same 


632 


EQUALITY  AS  A  POLITICAL  PRINCIPLE, 


611 


consistent  with  legislative  discrimination  according  to  the  dic- 
tates of  the  public  welfare,  and  equality  under  the  police  power 
is,  as  will  be  seen,  a  problem  of  considerable  complexity.  The 
Supreme  Court  has  leaned  strongly  against  allowing  the  plea 
of  a  violation  of  the  equal  protection  of  the  laws.  In  one  case 
in  which  the  appeal  to  the  Fourteenth  Amendment  was  sus- 
tained, there  Avas  a  grossly  partial  administration  of  laws,  pre- 
tending to  be  equal,  but  aimed  at  the  oppression  of  a  particular 
class,'^  in  another  case  the  inequality  concerned  the  relative 
treatment  of  two  parties  in  litigation,  that  is  to  say,  the  admin- 
istration of  justiee.i^  In  the  matter  of  the  police  power  legis- 
lative discretion  on  the  part  of  the  states  is  respected  within 
wide  limits.^  ^  But  recent  decisions  show  a  tendency  to  sub- 
ject statutory  classification  to  a  more  rigid  test.^''' 

v;  611.  Equality  and  due  process  of  law.— The  essential 
principles  of  equalit}^  must,  however,  govern  the  exercise  of  the 
police  power,  whether  under  the  requirement  of  the  equal  pro- 
tection of  the  laws,  or  under  that  of  due  process.  The  two 
ideas  are  closely  associated  in  the  minds  of  the  courts.  In  the 
litigation  over  the  state  regulation  of  railroad  charges  all  the 
later  cases  emphasised  the  equal  protection  of  the  laws.  In 
the  Minnesota  case^^  it  was  said  that  in  so  far  as  railroad  com- 
panies were  deprived  of  their  property  through  unreasonably 


civil  iiiid  political  powers,  and  that 
cliildrcn  and  adults  are  legally  to 
have  the  same  functions  and  be  sub- 
ject to  the  same  treatment,  but  only 
that  the  rights  of  all,  as  they  are 
settled  and  regulated  by  law,  are 
equally  entitled  to  the  paternal 
consideration  and  protection  of  the 
law  for  their  maintenance  and  se- 
curity, ' ' 

Coke's  comnu'iit  ini  tin-  words  of 
the  Great  Charter,  nuHi  vcndemus, 
etc.,  contains  the  essence  of  the 
principle  of  ('(|uality  as  originally 
understood  in  the  phrase  of  the 
e()ual  protection  nl"  the  laws:  ''ami 
therefore  every  sidtject  of  tliis 
realm,  for  injury  <h»ne  in  Ixinis 
terris  t^el  pcrsoiKi  by  any  oilier  H\d)- 
ject,  be  he  ecclesiastical  or  (einiioral, 


free  or  bond,  man  or  woman,  old  or 
}ouug,  or  be  he  outlawed,  excom- 
nuinicated,  or  any  other  without  ex- 
ception, may  take  his  remedy  by  the 
course  of  the  law,  and  have  justice, 
and  right  for  the  injury  done  to 
iiim,  freely  without  sale,  fully  with- 
out any  denial,  and  speedily  with- 
out delay. ' ' 

1-1  Yick  Wo  V.  Hopkins,    lis  U.  S. 

:;5t). 

1'Culf  &c.  K.  K.  Co.  V.  Kills,  Hi") 
IT.  S.  1.50, 

1"  Plessy  V.  I'\'rguson,  Hili  V.  S. 
,').37;  Atchison  &c.  R.  T?.  Co,  v, 
Matthews,  174  T^  S.  90. 

i7("(,tting  V.  C.odard,  \H^^  V.  S. 
79;  Connolly  v.  Union  Sewer  I'ijie 
Co..  1S4  T^  S.  .'i40. 

'"Chicago,  M.  &  St.  I'.  K.  ("o.  v. 
.Miniiesola.   131  U,  S,  41S. 


§611  EQUALITY   AND    DVE    PIJOPESS.  633 

low  rates,  while  other  persons  were  allowed  to  receive  reason- 
able profits  upon  the  capital  they  had  invested,  the  companies 
were  deprived  of  the  equal  protection  of  the  laws.  In  the 
Texas  case^^  it  was  said  that  the  equal  protection  of  the  laws 
is  denied  where  property  is  wrested  from  an  individual  without 
compensation  for  the  benefit  of  another  or  of  the  public,  and 
in  the  Nebraska  case^'^' equal  protection  and  due  process  are 
treated  almost  as  meaning  the  same  thing. 

The  state  courts  likewise  identify  equality  and  due  process 
of  law.  So  it  is  said  in  Millett  v.  People,2i  that  due  process 
of  law  or  the  law  of  the  land  is  the  general  public  law  bind- 
ing upon  all  the  members  of  the  community,  and  not  partial 
or  private  laws  affecting  the  rights  of  private  individuals  or 
classes  of  individuals.  The  law  of  the  land  has  been  said  to 
be  the  opposite  of  arbitrary,  unequal  and  partial  legislation,22 
and  as  due  process  may  be  said  to  be  the  essence  of  constitu- 
tional government,  so  the  Supreme  Court  has  said  ''the  equal- 
ity of  rights  of  citizens  is  a  principle  of  republicanism.  "^3 

Equality  is  for  the  purpose  of  controlling  the  validity  of  legis- 
lation a  more  definite  conception  than  liberty,  for  it  has  the 
advantage  of  being  measurable.  Government  cannot  be  con- 
ceived without  an  infringement  of  liberty,  while  the  claim 
of  equality  is  consistent,  in  idea  at  least,  with  almost  any  form 
of  governmental  power.  The  power  of  criminal  and  civil  legis- 
lation, the  judicial  power,  the  taxing  power,  and  the  police 
power,  may  all  be  exercised  with  a  due  regard  for  the  principle 
of  equality. 

The  principle  of  equality  has,  however,  this  great  difficulty: 
it  cannot  mean  that  all  persons  must  under  all  circumstances 
be  treated  alike,  but  it  can  only  mean  that  equal  conditions 
must  receive  equal  treatment.  But  what  constitutes  inequality 
of  condition?  Is  it  not  true  that  all  unequal  and  class  legisla- 
tion of  former  times  was  based  upon  alleged  inequality  of 
condition?  And  is  not  class  legislation  justified  to-day  upon 
the  same  ground?  Only  a  practical  and  concrete  treatment 
of  the   problem   can  produce   workable   theories. 

loEeagau  v.  Farmers'  Loan  &  aud  see  State  ex  rel.  Wyatt  v.  Ash- 
Trust  Co.,  154  U.  S.  362.  brook,  15-i  Mo.  375,  4S  L.  E.  A.  265. 

20  Smyth  v.  Ames,  169  U.  S.  466.  23  United  States  v.  Cruikshank,  92 

21  117  111.  294.  U.  S.  542. 

22  State  V.   Looinis,   115   Mo.   307; 


634  EQUALITY  AS  A  POLITICAL  PKIA'OIPLE.  §  611 

For  the  purpose  of  further  analysis  the  idea  of  equality  may 
be  expressed  by  saying  that  it  excludes  in  principle  both  partic- 
ular burdens  and  special  privileges,  but  admits  of  reasonable 
classification. 

It  is  then  necessary  to  inquire,  what  is  meant  by  i)articular 
burdens,  special  privileges,  and  reasonable  ciassitication. 


CHAPTER  XXIX. 
PARTICULAR  BURDENS. 

§  612.  Subject  selected  to  be  responsible  for  condition  call- 
ing for  burden. — It  is  an  elementary  principle  of  equal  jus- 
tice, that  where  the  public  welfare  requires  something-  to  be 
given  or  done,  the  burden  be  imposed  or  distributed  upon 
some  rational  basis,  and  that  no  individual  be  singled  out  to 
make  a  sacrifice  for  the  community.  This  principle  lies  at 
the  foundation  of  the  law  of  taxation,  and  applies  equally  to 
the  police  power.  With  reference  to  the  latter  it  may  be  ex- 
pressed by  saying  that  to  justify  the  imposition  of  a  burden 
there  must  be  some  connection  of  causation  or  responsibility 
between  the  person  selected  or  the  right  impaired  and  the 
danger  to  the  public  welfare  or  the  public  burden  which  is 
sought  to  be  avoided  or  relieved.  The  violation  of  this  prin- 
ciple is  illustrated  in  a  statute  of  Illinois  of  1855,  which  pro- 
vided that  a  railroad  company  should  be  liable  to  pay  the 
expenses  of  coroner's  inquest  and  burial  not  only  if  a  person 
should  be  killed  by  its  cars  or  machinery  or  any  accident 
thereto,  but  also  if  any  person  should  die  on  any  of  its  cars. 
If  a  person  happens  to  die  on  a  railroad  car  from  illness,  there 
is  evidently  not  the  slightest  causal  connection  between  the 
business  of  the  railroad  company  and  the  public  inconvenience 
and  loss  for  which  the  statute  seeks  to  make  the  railroad  com- 
pany responsible.  The  provision  was  therefore  held  unconsti- 
tutional in  the  absence  of  any  violation  of  law  or  omission  of 
duty.^  A  municipal  ordinance  required  a  railroad  company 
to  place  powerful  arc  lamps  twenty-five  feet. above  its  tracks 
at  a  number  of  street  crossings  and  to  keep  them  lighted  every 
night  from  dark  to  dawn.  It  appeared  that  the  railroad  com- 
])any  ran  no  trains  through  the  city  after  8  P.  M.  It  was  held 
that  the  object  of  the  ordinance  could  not  be  the  security  of 
the  citizens  from  the  running  of  trains,  and  that  the  required 
arrangement  and  power  of  the  lamps  showed  that  the  city 
meant  to  throw  the  duty  of  lighting  its  streets  upon  the  rail- 

1  Ohio  &  Mississippi  E.  Co.  v.  Lackey,  78  111.  55. 

635 


g36  PAKTICULAK  BURDENS.  §  613 

road  company.  The  ordinance  was  therefore  declared  void.- 
So  the  obligation  to  pave,  clean  and  sprinkle  the  whole  of  the 
streets  through  which  a  street  railroad  runs  cannot  be  imposed 
upon  a  street  railroad  company  except  as  a  consideration  for 
the  grant  of  a  franchise,^  although  it  may  be  required  to  keep 
the  portion  occupied  by  the  tracks  free  from  dust.^ 

The  United  States  Supreme  Court  states  the  principle  illus- 
trated in  these  cases  by  saying:  "The  property  must  be 
the  cause  of  the  detriment. "°  It  is  not  sufficient  that  some 
property  is  needed  to  promote  some  public  interest  or  relieve 
some  public  necessity,  otherwise  the  taking  of  private  property 
for  public  use  without  compensation  would  be  justified.  It  is, 
however,  on  the  contrary,  a  dictate  of  the  principle  of  equality, 
that  where  some  person's  property  is  taken  for  public  use,  an 
equivalent  be  given  for  the  sacrifice  and  this  equivalent  be 
borne  by  the  public  at  large.  "The  equal  protection  of 
the  laws  which  by  the  Fourteenth  Amendment  no  state 
can  deny  to  the  individual,  forbids  legislation,  in  whatever 
form  it  may  be  stated,  by  which  the  property  of  one  individual 
is  without  compensation  wrested  from  him  for  the  benefit  of 
another,  or  of  the  public."" 

A  number  of  cases  require  consideration  in  which  the  con- 
nection between  burden  and  responsibility  is  doubtful  or  not 
obvious. 

§  613.  Particular  services. — The  Ordinance  for  the  Northwest 
TfTi-itoi-y  pi'ovidcd  that  no  man's  particular  services  shall  be  de- 

^  Cleveland,  C.  C.  &  St.  L.  R.  C.  v.  ering  the  entire  lot  would  be  the 
Connersvillf,  1-17  Tnd.  277,  46  N.  E.  cause  of  unsanitary  conditions 
.-^9  through    lack    of    ventilation;    hence 

3  State  V.  New  Orleans  C.  &  L.  t'^^^e  i»  "»  compensation.  If,  on  the 
,,    ,,       .[>  J  .     ,Y|j,|    j5yj  other  hand,  the  la\y  requires  that  the 

owner    leave    a    portion    of    his    lot 

4  Dillon  Municipal  Corporations,  .,,ijoi,iing  the  street  vacant  ia  .uder 
8  7'Jl,  aii<l  §  620,  infra.  ,,,  increase  the  \\i'll!i  «'l"  the  street, 

•''Davidson  v.  New  Orleans,  Si6   T.  (],(,  <.ondition   sought   to   be  avoided 

S.  '.•7.  or  remedied  is  not  one  for  whicii  the 

•1  Reagan     v.     Farmers'     l>oan     &  owner    is   responsible,    and    liie    biir- 

'I'liist  Coiapaay,  1.")}  U.  S.  :i()2.     The  den  is  placed  u] liini  for  tlie  I.me- 

following  will   further  illustrate  the  fit  of  the   pid)lic   simply   because  his 

operation  of  the  principle:     The  law  property  is  needed;   hence  coaijuMisa- 

requires  that  a  tenr-ment  house  shall  tion   is  due,     St.  Tiouis  v.    Hill,    IK) 

not  cover   mon!   than   a   certain    pro-  Mo.  527. 

portion   of  a    buihliag  lot;    here  th(!  The  Prussian  Co.h'of  17!l-t  (lutro- 

iHiildiug   <Tected    by    the;   owner   eov-  duction,   §§   74,   75)    j.rovides:      Par- 


§  613  PARTICULAR  SERVICES.  tj37 

manded  without  just  compensation,  and  this  prijvisiou  lias 
been  enibodiod  in  the  eonstitution  of  some  states  J  In  other 
states  this  rule  would  follow  from  the  principle  of  ((luality. 

Where  the  law  requires  of  a  person  eng^aged  in  a  business 
affected  with  a  public  interest  a  report  of  transactions  or  con- 
ditions, the  purpose  is  generally  to  control  the  business;  and 
this  duty,  it  seems,  can  also  be  imposed  where  the  primary 
object  is  to  furnish  vital  statistics;  so  where  a  minister  is 
required  to  report  the  marriages  which  he  solemnises  ;*<  or 
where  physicians  are  made  to  report  cases  of  birth  or  death 
in  their  practice."  It  is  probably  not  a  sufficient  justification 
of  the  requirement  of  a  particular  service,  that  it  requires  no 
substantial  sacrifice  of  time  or  money;  so  it  has  been  held 
that  street  railroad  companies  cannot  be  required  to  carry 
policemen  without  payment  of  fare.'*^'. 

The  most  important  case  of  particular  services  required  be- 
longs to  the  judicial  power,  under  which  attorneys  are  required 
to  defend  poor  persons.  In  Illinois,  ^'  INIichigan,  ^-,  Califor- 
nia ^^  and  Washington,  ^^  it  is  held  that  this  duty  may  be 
imposed  as  incident  to  the  office  and  the  privileges  of  an  attor- 
ney, though  no  compensation  be  provided,  while  in  Indiana^ ^ 
and  Wisconsin's  the  county  was  held  liable  for  compensation, 
and  in  Indiana  the  requirement  without  compensation  was 
held  unconstitutional.  The  amount  of  compensation  may  be 
fixed  by  authority.''^ 

§  614.  Emergency  services.— The  duty  to  render  eonimon  i)u])- 
lic  services  does  not  violate  the  principle  of  equality,  although 
not  every  one  may  in  every  instance  be  called  upon  to  perform 

ticular    rights    and    advantages    of  lo  Wilson   v.   United   Traction   Co., 

members  of  the  state  must  yield  to  76  N.  Y.  Suppl.  203. 

rights  and  dnties  for  the  promotion  n  Vise  v.  Hamilton  Co.,  19  111.  7S. 

of   the  public  welfare,    if  a  coiifiict  '-Bacon    v.    Wayne    Co.,    1    Mich, 

between    the    two    arises.      But    tlie  Uil. 

state  is  bound  to  indemnify  the  one  i3  Rowe  v.  Yuba  Co.,  17  Cal.  61. 

who  is  required  to  sacrifice  his  par-  i*  Prosby  v.  Klickitat  Co.,  .')  Wash, 

ticular    rights    and    advantages    for  329. 

the  benefit  of  the  commonwealth.  is  Blythe    v.    State,    4     Ind.    r)25; 

"i  e.  g.  Indiana  and  Tennessee.  W(>1)])  \-.  Bainl,  (i   Ind.   ll!. 

8  State  V.   Madden,   81   Mo.  421.  I'l  Dane  Co.  v.  Smith,  13  Wis.  58:1. 

9  Robinson  v.  Hamilton,  60  Iowa,  i"  Samuels  v.  County  of  Dubuque, 
134;  State  v.  Wordin,  56  Conn.  216.  13  Iowa  536. 


638 


PAKTICULAE  BUKDEXS.  S  615 


theiu.i'^'  Iji  an  emergency  the  duty  naturally  devolves  on  those 
Avho  are  able  to  help  and  who  are  at  hand.  The  common  law 
has  long  recognised  that  all  persons  are  required  to  nid  and 
assist  in  the  enforcement  of  the  law.  and  authorises  the  sheriff 
to  call  out  the  power  of  the  county,  if  necessary  to  break  resist- 
ance. In  such  cases  the  call  will  necessarily  be  confined  to  a 
portion  of  the  able-bodied  men  only,  and  unless  the  selection 
is  clearly  alfected  by  favor  or  partiality,  the  rule  of  equality 
is  not  violated. 

Thus  services  may  be  enlisted  in  case  of  a  conflagration.'-' 
The  Revised  Code  of  Chicago-'^  provides  that  every  person 
present  at  a  fire  shall  be  subject  and  obedient  to  the  orders  of 
the  fire  marshal  in  extinguishing  the  fire  and  removing  and 
protecting  property,  a  refusal  to  obey  being  punished  by  fine, 
and  power  being  given  to.  arrest  and  detain  the  person  refus- 
ing until  the  fire  is  extinguished,  when  he  is  to  be  taken  before 
a  magistrate.  In  Minnesota  an  ordinance  providing"  for  the 
arrest  of  persons  refusing  at  a  fire  to  obey  the  orders  of  au- 
thorised persons  was  held  void  on  the  ground  that  the  arrest 
was  intended  as  punishment  and  was  not  inflicted  by  due 
process  of  law.-^ 

So  the  duty  to  report  cases  of  contagious  disease  may  be  laid 
not  merely  upon  heads  of  families,  and  physicians,  l)ut  upon, 
any  person  having  knowledge  of  a  case.-- 

Since  in  all  these  cases  tlie  duly  is  in  reality  general,  no  com- 
pensation is  due.2  3 

;i  615.  Underwriters'  patrols.  — A  pi'culiai'  instance  of  compul- 
sory service  is  found  at  present  in  the  legislation  of  New  York, 
Illinois,  and  other  states,  creating  so-called  underwriter's 
patrols.-*  Boards  of  underwriters  are  incorporated,  at  the 
meetings  of  whi(di  each  eonipan>'.  agent,  oi-  person  doing  fire 

18  As  to  liability   to   military  con-  I  lie    [.i(i\isinii    liaw    sinc<-    liccii    iii.kIi! 

Hcription    see   Kiieedlcr    v.    Laiio,    45  }>eiioral    for  liii"  state    (1*.   I>.  di.  ;!_, 

Pa.   St.  238.     Parker  v.   Kau<jlinian.  §   14). 

34    Cia.    136;    as    to    road    labor    sw  -"  S  ()44. 

DeiiniH  v.  Simon,  51   Oh.  St.  L'33,  30  -'i  Jmlson     v.     U'r.ml K!     Minn. 

N    Vj.  83li,  1,'c  Dassicr,  35   K'lni.  <'u^,  131. 

\2   \',\r.    13<).  -■-<'liai>in   Mnnicipal  Sanitation,  p. 

e.i  By    ;i    colonial    ad    of    1711    the  131;   rcipiirfil   inn   number  of  states. 

fire  wards  (.f  P.oston  were  antlioriseil  -''i  Sears    v.    (lallatin     County,     'JO 

f(.    c(immaM<l    an-l    rc<|iiire    assistance  Mont.  4fil2,  4(»  I/,  h".  A.    105. 

I'or  the  extinunisliinu  of  fires  anil  rr-  -'III.    l{ev.    Stat.    ch.    14'J,    N.    Y, 

COTcring  goo'la  from  buildings,  und  Laws  1867,  ch.  846. 


§  616  NATURAL  DANGERS.  630 

insurance  business  in  the  city  is  entitled  to  representation  and 
to  one  vote.  The  majority  may  determine  upon  tlu'  nniin- 
tenance  of  a  fire  patrol  and  upon  a  maximum  expense  to  be 
incurred  therefor,  the  amount  not  to  exceed  a  certain  per- 
centage of  the  aggregate  of  premiums  returned,  and  every 
underwriter  is  for  this  purpose  required  under  penalty  to  make 
a  statement  of  the  premiums  received  by  him.  The  amount 
is  assessed  upon  all  underwriters  in  proportion  to  the  premiums 
received.  This  legislation  was  sustained  in  New  York  as  a 
police  regulation  imposed  upon  those  having  the  sole  right  to 
do  insurance  business,  for  the  purpose  of  preserving  life  and 
property.2^  In  order  to  justify  this  compulsion,  it  is  necessary 
to  regard  efforts  to  minimise  losses  as  reasonably  incident  to 
the  insurance  business. 

DANGERS  DUE  TO  NATURAL  CONDITIONS.  §§  61G-G20. 

§  616.  At  common  law.— It  is  not  doubted  that  the  owner 
of  a  house  abutting  on  a  public  street  may  be  required  to  keep 
the  roof  free  from  snow,  the  fall  of  which  might  injure  per- 
sons passing  on  the  street.-^  While  he  is  not  responsible  for 
the  fall  of  the  snow,  its  liability  to  fall  from  a  considerable 
height  is  due  to  the  erection  of  the  building,  and  thus  the 
owner  is  indirectl}^  responsible  for  the  danger.  It  seems  to  be 
essential  to  the  common  law  idea  of  a  nuisance,  that  the 
offensive  condition  be  due  either  to  the  act  of  man,  or  to  the 
failure  to  maintain  that  which  has  been  erected  and  created 
by  human  agency,  in  a  safe  or  proper  condition.  At  common 
law  there  is  no  liability  for  a  natural  condition  not  in  any 
way  traceable  to  positive  human  action.  Thus  malarial  swamps, 
or  lowlands,  swollen  streams,  weeds  or  insects,  or  diseased  ani- 
mals, do  not  constitute  actionable  nuisances.^" 

§  617.  Under  the  police  power.—  It  does  not,  however,  follow 
that  such  conditions  are  beyond  the  police  power.  There  is 
some  legislation  dealing  with  dangers  of  this  kind,  so  especially 
for  filling  in  lots  covered  with  stagnant  water.^s  The  duty 
to  destroy  Canada  thistles  and  other  noxious  weeds  is  some- 

25  Ne^,    York    Board    of    Under-  27  Giles  v.  Walker,  24  Q.  B.  D.  656. 

writers  v.  "Whipple,  37  N.  Y.  Supjil.  -'' Thapin  Municipal  Sanitation,  p. 

712.  Ut(5. 

2C  Shipley  v,  Pifty  Assodlates,  106 
Mass.  194. 


f540  PARTTCULAE  BURDENS.  §  618 

times  cast  upou  owners  of  lands,  and  upon  railroad  companies 
with  regard  to  their  right  of  Avay.  In  Illinois  the  county  au- 
thorities are  empowered  by  statute  to  take  possession  of  an 
infected  tract  (without  unnecessarily  depriving  the  owner  of 
any  legitimate  use  and  enjoyment)  and  to  exterminate  the 
thistles  at  the  expense  of  the  owner.-'^  A  statute  of  r\[assa- 
chusetts^"  directed,  for  sanitary  purposes,  the  raising-  of  cer- 
tain lowlands  to  a  level  thirteen  feet  above  Ioav  water  mark. 
The  work  was  required  in  the  first  instance  of  the  owner ;  upon 
his  default  the  work  was  to  be  done  by  the  public  at  his  ex- 
pense, but  he  was  given  the  alternative  right  to  demand  that 
the  land  be  taken  over  by  the  public  at  a  fair  valuation. -"^i  We 
thus  find  that  the  owner  is  given  an  election  betAveen  improve- 
ment at  his  expense,  and  expropriation  under  eminent  domain. 
What  the  public  needs  is  the  improvemnt  and  not  the  land, 
and  only  because  it  cannot  be  expected  to  present  the  private 
owner  with  the  improvement,  it  needs  the  land  in  order  to 
make  the  improvement,  provided  that  the  owner  cannot  be 
induced  to  make  the  improvement  or  pay  for  it.  The  necessity 
for  the  exercise  of  the  right  of  eminent  domain  is  thus  con- 
ditional, and  may  be  avoided  by  the  ownoi-.  T'mh'i-  the  statute, 
however,  the  owner  is  not  compelled  to  make  the  iiuproveraent 
at  his  expense.  The  Supreme  Court  of  Massachusetts  has,  how- 
ever, iiplii'ld  ollici-  hiws  requiring  owners  to  raise  Ihcii-  lands 
to  such  permanent  grade  as  may  bo  necessary  to  secure  com- 
plete drainage  thereof."^- 

^  618.  Reasonableness  of  requirement.— It  seems  just  that 
an  owner  should  Ix'  compelhMl  lo  put  his  land  in  such  condition 
that  it  will  not  be  imminently  dangerous  to  others,  provided 
it  can  !)(■  done  at  a  reasonable  expense.  In  the  case  of  the 
raising  of  low  lands  it  may  Avell  be  urged  that  the  dangei'  is 
not  innninent  and  that  the  (^Npcusc  exceeds  what  may  be  called 
the  condition  upon  which  pi'o|)erty  is  held  in   the  connnuuity. 

The  rightfulness  of  the  r('(|uii'<'ment  to  clrar  land  of  weeds 
;itid  pests  ^\•Mlll(|  likewise  depend  upon  llie  diriieuhy  and  ex- 
pense of  the  uMi lei't ;il\ing.  An  ordiniiiice  of  a  eoniity  of  ('ali- 
t'oniia   declared   ^roiuiil   s(|uirrels  to  lie  ;i    public   nuisance,  ;ind 

-»  At;l    iif    .M:mi|i     1.",     IST'J;     !v('\.  •"-  N'icki'isnii    y.    I'.dsliui,    I  .'i  1     Mmss. 

Stat.  eh.  IS.  .'flKi.     Sec   Kcv.   L.-iws.   di.   7.1,   §§   7.'), 

••">  I.:i\VH  of   IST'J,  ell.  -JlMt.  7<>. 

"1  liiiiiiriiri      V.      ('!imt)r'ulfi<',      1'Jrt 
Mass.  438. 


§  619  NATURAL  DANGERS.  G41 

required  all  owners  of  land  williiii  the  county  within  !)()  days 
to  exterminate  and  destroy  such  ground  squirrels  on  their 
respective  lands.  The  Supreme  Court  of  the  state  regarded 
the  requirement  as  incapable  of  being  carried  out,  and  de- 
clared the  ordinance  unreasonable  and  void."''''  The  court  said : 
''Such  an  ordinance  differs  materially  from  laws  requiring 
an  occupant  of  lands  to  keep  them  free  from  noxious  weeds, 
or  such  as  make  it  the  duty  of  an  owner  of  diseased  domestic 
animals  to  kill  them  in  order  to  prevent  the  spread  of  the  dis- 
ease. These  are  matters  over  which  the  propertj^  owner  has 
control,  and  the  requirements  are  reasonable  and  just." 

§  619.  Land  not  the  source  of  the  danger.— It  seems,  how- 
ever, that  the  improvement  of  natural  conditions  cannot  be 
compelled,  where  the  land  to  be  improved  does  not  contain 
the  source  or  instrument  of  the  danger.  An  act  of  Illinois  of 
May  19,  1883,  authorised  municipalities  to  require  repairs  of 
embankments  of  riparian  owners  whose  duty  it  was  in  law  or 
equity  to  maintain  them,  but  the  act  was  repealed  in  1899, 
and  probably  never  had  any  application,  since  no  such  duty 
existed.  An  early  act  of  Louisiana^"*  imposed  the  duty  of 
making  levees  to  protect  the  inhabitants  against  inundation 
upon  riparian  proprietors.  The  dike  burdens  recognised  by 
the  ancient  laws  and  customs  of  lower  Germany  fall  upon  all 
the  owners  of  lands  exposed  to  floods,  and  correspond  to  the 
principle  of  joint  compulsory  improvements  sanctioned  by  the 
Supreme  Court  in  Wurts  v.  Hoagland.^^'^  A  Prussian  statute 
provides  that  where  land  is  in  such  condition  and  location  that 
the  maintenance  of  a  forest  on  it  will  diminish  or  remove  the 
danger  of  floods  or  landslides,  the  establishment  or  main- 
tenance of  forests  can  be  compelled,  if  the  loss  to  be  averted 
considerably  outweighs  the  injury  resulting  to  the  owner  from 
the  restrictions  imposed  upon  him.  Full  compensation  must 
be  awarded  to  the  owner.^*' 

33  Ex  parte  Hodges,  87  Cal.  162.  thereby    a    considerable    injury    can 

3-1  Act  No.  31,  February  7,  1829.  be  avoided  from  others  or  from  the 

35  114  U.  S.  GOG.  state    itself,    or    a    considerable    ad- 

3«  Act  of  July  6,  1875.    This  legis-  vantage  can  be  procured  for  either, 

lation  is  an  application  of  the  gen-  provided   the   one   or   the   other   can 

eral    principle    laid     down     by    the  be    done   without    any    disadvantage 

Prussian  Code  of  1794,  which  says:  lo   the   owner.      Also   where   the   in- 

the    state    can    restrict    the    private  jury  to  be  averted  or  the  advantage 

property  of  its  citizens  only  where 

41 


(J42  PARTICULAR  BURDENS.  §  620 

Reference  has  been  made  before  to  the  doctrine  enunciated 
by  the  Supreme  Court  of  Massachusetts  that  when  land  forms 
a  natural  barrier  to  water  courses  the  owner  may  be  prohibited 
from  unduly  weakening  it  by  removal  of  soil  f~  but  this  is  far 
from  holding  that  positive  measures  of  protection  may  be  re- 
quired of  the  owner. 

So  a  railroad  company  cannot  be  required  to  maintain  a 
causeway  M-hich  it  has  built  for  its  own  use,  and  which  happens 
to  protect  lands  lying  back  of  it  from  the  inroads  of  the  tide.^'^ 

The  principle  seems  to  be  that  where  the  natural  condition 
of  property  threatens  an  imminent  danger  which  can  be  averted 
at  reasonable  expense  or  by  reasonable  restrictions,  the  owner 
may  be  required  to  do  what  is  necessary  to  avert  the  loss; 
the  o^^^ler  of  property  can,  however,  not  be  required  to  take 
measures  for  the  removal  of  dangers  originating  beyond  his 
property,  simply  because  his  property  is  needed  or  adapted 
for  measures  of  relief. 

§  620.  Cleaning  sidewalks.  — The  courts  are  not  agreed 
whether  owners  of  lots  abutting  on  a  street  can  be  required 
to  keep  the  sidewalk  free  from  snow  and  ice.  The  duty  has 
been  sustained  in  Massachusetts,:'^  in  New  York,-*'*  and  in 
Indiana,-^'  while  the  power  to  impose  it  has  been  denied  in 
Illinois^-  and  New  Hampshire.-'''  The  requirement  is  sanc- 
tioned by  the  English  Public  Health  Act.^^ 

In  .AFassachusetts  the  ordinance  was  upheld  as  a  police  reguhi- 
tion  requiring  a  duty  to  be  performed  highly  salutary  and  ad- 
vantageous to  the  citizens  of  a  populous  and  ckisely  built  city, 
imposed  upon  those  who  are  so  situated  that  they  can  most 
])r()niptiy  and  conveniently  perform  it,  and  Avho  have  also  a 
peculiar  interest  in  the  sidewalk,  deriving  special  benefits  from 

to  be  procured,  from  or  to  tlio  state  -^  Koch  v.  Del.iware  etc.  1^.  R.  Co., 

or    its    citizens,     considerably     out-  HH  N.  .T.  L.  H.^C). 

weif^lis    tiie    disadvantafre    resultinj;  :•»  Goddard,    Pelitioiicr.     IC     I'irk. 

to    tlie   owner    from    the   restriction.  .'>04,  ISS.'j. 

Ill     tlie    latter    case,    however,     tlic  I'l  r'arthajje    v.    Frederick,    1J2    N. 

stale  must  take  care  that  the  owner  V.  2R.S. 

wlio   is  restrained   be  completely   in-  h  Hcinken    v.    I'ucl.rinp;,    1.30    liid. 

dcrmiified   for  the  injury  suffered  by  382. 

him.     Hk.   1,  Title  H,  §§  2;t-.^l.  •-Cri.lJey   v.    i{|o(,rnin-,'ton.   SS   Til. 

"•  ('(.mmonwealth     v.     Tewksbury,  ^}^^4  ;  Chica^'o  v.  <) 'liricn,  1  1 1  III.  ;").•?•_'. 

11      .Mete.     .'').');      Commonwealth     v.  ki  state  v.  Jackinan.  ()9  N.  IT.  :ns, 

AlKer.  7  r„sh.  r,^.  -11   All.  .-^47,  42  L.  R.  A.  -438. 

44  38  and  39  Vid.  ch.  r,ri,  §  44. 


^  (j20  CLEANING  SIDEWALKS.  643 

it  for  purposes  of  building-  and  passage.  The  New  York  court 
rests  its  decision  ehielly  on  the  necessity  to  the  public  and  the 
small  inconvenience  to  the  owner.  In  Illinois,  on  the  other 
hand,  it  is  held  that  the  abutting  owner  has  the  same  interest 
in  the  removal  of  the  snow  as  other  citizens,  and  no  more ;  and 
that  the  requirement  is  therefore  a  special  burden  inconsistent 
with  the  principle  of  equality.  We  have  then  in  supi)ort  of 
the  power  the  argument  of  necessity  and  convenience  and 
special  interest;  against  the  power,  the  contention  that  the 
burden  bears  no  relation  to  a  condition  peculiar  to  the  person 
charged. 

The  argument  in  favor  of  sustaining  the  duty  seems  the 
stronger  one.  The  abutting  owner  has  in  the  street  fronting 
his  premises  special  easements  of  light  and  air,  he  may  use 
it  for  piling  up  brick  while  building,  and  keep  carriages  wait- 
ing in  front  of  his  door,  and  he  frequently  uses  part  of  the 
street  bed  for  areas,  coal  holes,  and  vaults.  This  special  inter- 
est seems  sufficient  to  justify  the  imposition  upon  those  who 
enjoy  it  of  a  common  service  which  is  not  unduly  burdensome. 
Where  the  city  undertakes  to  clean  the  main  portion  of  the 
street,  it  may  also  be  said  that  the  apportionment  of  expense 
and  labor  between  the  city  and  the  owner  corresponds  approxi- 
mately to  the  proportion  of  public  and  private  interest  in  the 
street.  The  power  to  regulate  property  relations  by  changing 
indefinite  equities  into  definite  rights  and  obligations  between 
the  parties  is  properly  a  legislative  power  where  the  regula- 
tion affects  many  persons  in  the  same  condition,^'^  and,  espe- 
cially in  cases  involving  small  amounts,  is  apt  to  produce  better 
practical  justice,  than  an  attempt  to  weigh  minutely  charges 
and  benefits.  Here  the  duty  is  laid  according  to  a  compre- 
hensive and  general  system,  and  there  is  no  such  disproportion 
between  benefit  and  burden  as  to  show  an  abuse  of  legislative 
power."*^ 

In  view  of  the  fact  that  heavy  snov/fall  and  the  formation 
of  ice  can  generally  not  be  foreseen  or  guarded  against,  and 
that  there  is  urgent  need  of  immediate  relief  to  prevent  dis- 
comfort and  accident,  it  may  also  be  said  that  there  is  in  such 
cases  an  emergency  which  justifies  the  enlistment  of  the  aid 
of  all  who  are  in  a  position  to  render  services  without  a  sub- 

45  Commonwealth  v.  Alger,  7  Cush.  ^e  Parsons  v.  District  of  Columbia, 
53.  170  U.  S.  45,  52,  57. 


g44  PAETICULAR  BURDENS.  §  621 

stantial   sacrifice.     This   argument   has   especial   force   Avhere 
the  duty  is  thrown  upon  occupying  o^vners. 

It  is  certain  that  the  view  upholding  the  power  corresponds 
to  the  long  established  practice  of  legislation,  and  it  may  be 
noted  that  in  Illinois,  where  the  requirement  was  held  to  be 
unconstitutional,  the  power  to  impose  it  was  given  to  the  city 
of  Chicago  as  early  as  1837.  Every  presumption  is  in  favor 
of  the  constitutionality  of  a  governmental  power  which  has 
always  been  exercised,  and  has  commended  itself  to  the  pop- 
ular judgment  as  fair  and  reasonable. 

The  Supreme  Court  of  Illinois  sustains  the  imposition  upon 
street  railroad  companies  of  the  dut}^  to  clean  that  part  of  the 
streets  which  is  occupied  by  them,  partly  upon  the  ground 
that  the  construction  of  the  tracks  prevents  water,  etc.,  from 
running  down  the  gutters,  partly  upon  the  ground  of  special 
rights  which  the  railroad  company  has  in  the  street,  while  the 
abutting  owner  is  held  to  have  no  such  special  right.'*' 

In  Wisconsin,  Michigan  and  Nebraska  an  owner  may  also 
be  required  to  keep  the  sidewalk  in  front  of  his  lot  in  repair.^*^ 

SPECIAL  LIABILITY  IN  CONNECTION    WITH    HAZARDOUS    UN- 
DERTAKINGS.    §§  621-638. 

§  621.  Extension  of  liability  beyond  common  law  principles. 
— In  a  number  of  cases  the  law  throws  burdens  upon  those  who 
engage  in  a  business  or  undertaking  specially  affecting  the 
public  welfare,  which  are  not  in  accordance  with  the  rules  of 
liability  of  the  common  law.  The  departure  from  the  rules  of 
the  common  law  has  been  complained  of  as  a  departure  from 
the  rules  of  justice,  and  by  an  identification  of  justice  with 
due  process  of  law  the  question  of  constitutional  power  has 
been  raised.'*''     Since  these  special  rules  of  liability  are  reg- 

•  '  Chicago  V.  Chicago  Union  Trac-  taxing   power.      The   requirement   to 

tion  Co.,  199  HI.  2.59,  65  N.  E.  243.  build  sidewalks  has  been  upheld  as  a 

-•8  Hiner  v.  Fond  du  Lac,  71  Wis.  police  regulation  in  Palmer  v.  Way, 

74;    Lynch    v.    Hubbard,    Mil     Mich,  (i  Col.  106,  and  Mayor  of  New  Iberia 

43;  Lincoln  v.  .lanesch,  63  Neb.  707,  v.  Fontelieu,  108  La.  460,  32  So.  369, 

.')6  L.  R.  A.  762.  and  as  an  exercise  of  the  power  to 

The  question  of  the  power  to  re-  compel   labor   on    roads   in   Trustees 

(|uiro    the    building    of   sidewalks    is  of  Town  of  Paris  v.  Berry,  25  Ky. 

closely   connected   with   the   question  483. 

of    the    constitutionality    of    special  •"'Missouri      Pjuific      R.      Co.      v. 

assessmentH,    which    belongs    to    the  Humes,  115  U.  S.  512. 


g  (J22  ^^^"^  ^■^^'  ^)''''i<-iAL  SUPERVISION.  (J45 

nlarly  created  to  insure  an  increased  protection  of  persons  and 
property,  they  fall,  if  valid,  within  the  province  of  the  police 
power.  They  involve  the  principle  of  equality,  since  tlie  im- 
position of  a  special  liability  would  be  undue  discrimination, 
if  the  special  circumstances  of  the  business  did  not  justify  it. 

§  622.     Liability  for  the  cost  of  official  supervision.— ^lost 
states,  since  the  latter  part  of  the  past  century,  have  created 
offices  or  commissions  to  supervise  certain  branches  of  busi- 
ness which  in  a  special  manner  affect  safety  or  some  other 
public  interest.    This  has  been  done  especially  with  regard  to 
railroads   and   mines,   and   banking   and   insurance.      In   some 
cases  the  cost  of  these  administrative  services  has  been  thrown 
upon  the  business  that  has  made  them  necessary.     In  several 
states  this  system  has  been  abandoned  in  the  ease  of  railroad 
commissions,^  as  unwise,  since  commissioners  paid  by  the  rail- 
road companies  were  found  not  to  be  sufficiently  independent. 
The  validity  of  such  a  requirement  does  not,  howe^ver,  depend 
upon  its  wisdom,  and  has  be£n  sustained  by  the  United  States 
Supreme  Court.^     The  court  holds  that  the  exaction  is  not  in 
the  nature  of  a  tax,  and  that  to  require  that  the  burden  of  a 
service  deemed  essential  to  the  public  in  consequence  of  the 
existence   of  the   corporations  and   the   exercise   of  privileges 
obtained  at  their  request,  should  be  borne  by  the  corporations 
in  relation  to  whom  the  service  is  rendered,  is  neither  denying 
to  the  corporations  the  equal  protection  of  the  laws,  nor  making 
any  unjust  discrimination  against  them.     The  court  refers  to 
the  fact  that  the  requirement  that  a  vessel  examined  shall  pay 
for  the  examination,  is  a  part  of  all  quarantine  systems.     So 
the  vessels  pay  for  the  services  of  the  pilots  whom  they  are 
compelled  to  employ.     In  New  York  a  statute  was  sustained 
imposing  the  cost  of  an  electrical  commission  upon  the  electrical 
companies  s^^bject  to  its  supervision."-     In  Illinois  the  fees  of 
grain  inspectors  are  borne  by  the  owners  of  grain  warehouses,^ 
and  the  fees  of  mine  inspectors  by  the  owners  of  the  mines  in- 
spected.^ 

1  So  in  Iowa,  1888,  ch.  28,  §  31.  5  Chicago  &c.   Coal  Co.  v.  People, 

2  Charlotte  etc.  R.  R.  Co.  v.  181  111.  270,  54  N.  E.  961,  48  L.  R. 
Gibbes,  142  U.  S.  386.  A.  .554.     Similar  decisions  in  Louisi- 

3  People  ex  rel.  N.  Y.  &c.  Co.  v.  ana:  New  Orleans  v.  Kee,  31  So. 
Squire,  107  N.  Y.  593;  New  York  1014  (laundries);  Louisiana  State 
V.  Squire,  145  U.  S.  175.  Bd.   of  Health  v.  Standard  Oil  Co., 

4  People  V.  Harper,  91  111.  367.  :51  So.  1015  (coal  oil). 


646  PAETICULAK  BUEDEXS.  §  623 

The  many  statutes  recently  enacted  for  the  admission  to 
certain  professions  upon  examination  almost  invariably  pro- 
vide that  the  examiners  be  paid  by  fees  charged  the  candidates ; 
it  has,  however,  been  held  that  the  cost  of  the  official  examina- 
tion of  railroad  engineers  as  to  their  fitness  for  their  position 
may  be  laid  only  upon  the  railroad  company  employing  the 
engineer  examined,  and  not  upon  other  railroad  companies; 
i.  e.,  the  railroad  company  can  be  made  to  pay  only  for  a  service 
indirectly  rendered  to  it  by  the  state." 

§  623.    Liability  for  the  cost  of  remedial  measures.— It  has 

been  held  in  Alinnesota  that  a  special  license  fee  may  be  col- 
lected of  liquor  dealers  for  the  purpose  of  making  up  a  fund 
for  the  establishment  and  maintenance  of  an  asylum  for  inebri- 
ates." Here,  too,  the  cost  of  a  public  service  is  laid  upon  that 
business  which  renders  the  service  necessary. 

§  624.  Liability  for  acts  of  persons  employed  under  legal 
compulsion.  — It  has  never  been  contended  that  because  a 
steamer  must  have  officers  examined  and  licensed  by  federal 
authority,*  the  owner  of  the  steamer  ceases  to  be  liable  for  their 
negligence.  The  liability  of  the  owner  is  justified  by  the  fact 
that  he  may  choose  his  officers  from  among  those  properly 
qualified,  that  they  are  subject  to  his  orders  and  to  discharge 
for  misconduct,  and  that  the  license  does  not  mean  a  guaranty 
of  fitness.'^  A  statute  of  Pennsylvania^ '^  provided  that  no  mine 
shall  be  operated  without  the  supervision  of  a  mine  foreman;" 
that  no  one  may  act  as  a  mine  foreman  unless  he  is  registered, 
as  a  liolder  of  a  certificate  of  qualification  granted  by  the  secre- 
tary of  internal  afl'airs;^-  and  that  the  mine  foreman  shall 
visit  find  examine  every  working  place  in  the  mine  and  direct 
that  il  be  properly  secured  by  props  or  timber,  and  shall  see 
that   all    slopes,   shafts,   ways,   signal    ;ii)paratus,    ])ull('ys   and 

'■•Baldwin  v.  Louisville  &  N.  R.  R.  ;ni   employee,   by   the   fact   that   tlin 

Co.,   8.5   Ahi.   (ill),   7   L.   K.   A.   26(5;  employee    was    a     registered     )di:n- 

Nasliville,  C  &  8t.  L.  H.  ('o.  v.  Ala-  maeist,    wliich    elass    alone    was    by 

bama,  128  U.  S.  96.  statute  allowed   to   fill   pres('rii)tions. 

estate  V.  Cassidy,   22  Minn.   312,  Burgess  v.  Sims  Drug  Company,  114 

1875.  Iowa  275,  86  N.  W.  307,  .^t  L.  R.  A. 

« United    States   Rev.    Stat.    4438,  304. 

4463.  10  Digest   IS'.).^,  p.  1340. 

"So    a    druggist    is    not    relieved  '<  §  108. 

from  liability  for  iniiiries  caused  by  '-' §  KM. 
a  prescription  negligently  put  up  by 


§  G25  ACTS  BEYOND  CONTKUL.  (;47 

timbering  are  in  sai'e  ami  fllieit-'nt  working-  cuntliLion.''  For 
any  injury  to  person  or  property  occasioned  by  any  violation 
of  the  act  or  any  failure  to  comply  -with  its  provisions  by  any 
owner,  operator,  mine  foreman,  or  iireboss,  the  statute  gave 
a  right  of  action  against  the  owner  or  oi^erator.' '  The  Supreme 
Court  of  Pennsylvania  held  that  so  much  of  the  last  mentioned 
section  as  imposed  a  liability  upon  the  mine  owner  for  the 
failure  of  the  forenum  to  comply  with  those  provisions  of  the 
act  which  compel  his  employment  and  define  his  duties,  was 
unconstitutional  and  void.^^  The  decision  should  probably  not 
be  understood  as  meaning  that  the  mere  compulsory  employ- 
ment of  the  foreman  and  the  vesting  in  him  of  certain  powers 
of  direction  was  sufficient  or  intended  to  relieve  the  mine  owner 
from  the  duty  of  the  greatest  care  on  his  part,  but  only  that 
in  so  far  as  a  direction  was  made  by  the  foreman  within  his 
statutory  powers,  the  owner  could  not  be  made  liable  for  the 
consequences  of  complying  with  such  direction.  It  would 
have  to  be  assumed  that  the  owner  did  not  know  of  the  fore- 
man's incompetency,  or,  having  such  knowledge,  had  no  power 
to  discharge  him.  The  principle  would  then  simply  be  that 
one  person  cannot  be  made  liable  for  the  acts  of  another  per- 
son, which  are  made  binding  upon  him  by  law.  Such  liability 
would  be  without  any  fault,  a  special  burden  without  any  pos- 
sibility of  avoiding  it. 

ij  625.  Ship's  liability  for  fault  of  pilot.— Yet  it  has  been 
held  by  the  United  States  Supreme  Court,  in  accordance  with 
certain  decisions  of  state  courts,^ ^  that  a  vessel  is  liable  for  a 
collision  solely  due  to  the  fault  of  the  i)ilot  whose  employment 
was  compelled  by  the  port  regulations.^'^  The  court  bases  its 
decision  upon  the  old  established  ])rinciple  of  the  maritime  law 
impressing  upon  the  ship  the  liability  for  the  damages  it  has 
caused,  a  principle  not  yielding  to  port  regulations  Avhich  the 
ship  owner  voluntarily  adopts  by  bringing  the  vessel  wilhiti 
the  port.  It  is  also  said  that  "it  is  the  duty  of  the  master  to 
interfere  in  cases  of  the  pilot's  intoxication  or  manifest  inca- 
])acity,  in  eases  of  danger  which  he  does  not  foresee,  and  in  all 

13  §§  149,  150.  206;    Williamson   v.   Price,    4    Mart. 

14  §216.  N.  S.  399;  Yates  v.  Brown,  8  Pick. 

15  Durkin   v.   Kingston  Coal   Com-      23. 

puny,  171  Pa.  St.  193.  it  The  China,  7  Wall.  53. 

16  Bussy    V.     Donaldson,     4    Dall. 


648  PAETICULAE  BURDENS.  §  626 

eases  of  great  necessity.  The  master  lias  the  same  power  to 
displace  the  pilot  that  he  has  to  remove  any  subordinate 
officer  of  the  vessel.  He  may  exercise  it  or  not,  according  to 
his  discretion." 

Perhaps  this  view  of  the  relation  of  the  master  to  the  pilot 
may  help  to  reconcile  the  decision  Avith  the  principle  before 
stated.  In  England  the  vessel  under  similar  circumstances  is 
by  statute  exempt  from  liability .^^  Such  is  also  the  rule  under 
article  738  of  the  German  Commercial  Code.  And  the  same 
rule  has  recentl}'  been  recognised  by  the  Supreme  Court  of 
the  United  States  as  governing  actions  at  common  law  as  dis- 
tinguished from  suits  in  admiralty.^^ 

§  626.  Civil  damage  acts. — In  several  states  the  laAv  provides 
that  any  person,  or  designated  relatives  (especially  husband, 
Avife,  child  and  parent),  who  shall  be  injured  in  person  or 
propert}^  or  means  of  support,  by  any  intoxicated  person,  or 
in  consequence  of  the  intoxication  of  any  person,  shall  have  a 
cause  of  action  for  damages  against  the  person  who  by  suppl^y- 
ing  the  liquor  caused  the  intoxication,  and  against  the  person 
Avho  as  OAvner,  etc.,  permits  the  occupation  of  premises  for  the 
sale  of  the  liquor  which  causes  the  intoxication  resulting  in 
such  injury.-"  In  some  states  also  the  recovery  of  gambling 
losses  is  allowed  against  the  owner  of  the  premises  Avho  know- 
ingly allows  them  to  be  used  for  gambling. 

It  is  obvious  that  in  such  cases  the  chain  of  causation  between 
the  conduct  of  the  person  held  liable  and  the  injury  for  whicli 
he  is  held  liable  is  so  long  and  in  ils  initial  links  so  weak  that 
connnon  sense  rather  revolts  against  the  injustice  of  the  rule. 
Yet  the  rule  has  be(ni  h(>l(l  to  be  constitutional.-' 

The  New  York  Covn-L  of  ApjK-als  holds  that  while  the  Icgis- 
latnre  may  not  impose  upon  one  man  a  liability  foi-  an  injniy 
sull'ci-cd  by  anotlier  with  which  he  had  no  connection,  it  may 
change;  the  lulc  of  the  common  law  which  looks  only  to  Dm 
])roximate  cause  ol"  the   iniscliicr.   in   attaching  legal   i'cs])onsi- 

i»52  Geo.  III.  ell.  I'll,  §  :U);   Mcr-  -'i  Bertliolf   v.   O'Reilly,   74   N.   Y. 

.•li;mt  Rliippiiijr   Art,    1X94,   §   ().3:^.  r>()9,    1878;    Mullen   v.    Peck,   49   Oh. 

ii'lIomcT  K;nnH(l<"ll  Transportjitioii  St.   447,   SI    N.    E.    1077;    Bedore   v, 

Co.  V.  ('(iiiipiifjiiio  (Jf'ii.  TranHatliinti-  Xcwidii,    .^4    N.     II.     117;     State    v. 

(Hie,  182  U.  S.  400.  l,ii(lin;>;t(iii,    :53   Wis.    107;    Ilowea   v. 

i"e.  ii.   Mass.  Rev.  Eaws,  cli.   IDO.  Maxw(>ll.   ir.7   Mass.  :]r.]. 
§  58, 


§  626 


CIVIL  DAi\JAGE  ACTS. 


649 


bility,  and  allow  a  recovery  to  be  had  against  those  whose  acts 
contributed,  although  remotely,  to  produce  it.  The  court 
admits  that  the  only  absolute  protection  against  the  liability 
imposed  by  the  act  is  to  be  found  in  not  using  or  permitting 
the  premises  to  be  used  for  the  sale  of  intoxicating  liquors, 
and  it  relies  strongly  upon  the  legislative  power  to  prohil)it 
such  sale  entirely.  Instead  of  prohilnting  the  legislature  may 
tliscourage  the  traffic  by  creating  liability  for  consequential 
damages.  The  court  speaks  of  the  act  as  an  extreme  exercise 
of  legislative  power,  and  it  is  to  be  noted  that  New  York  has 
abandoned  this  legislation,  giving  a  cause  of  action  to  a  person 
injured  through  intoxication  only  if  he  gave  notice  to  the  seller 
not  to  sell  to  the  person  intoxicated.22 

It  appears  that  the  only  ground  upon  which  the  liability 
of  the  owner  of  the  premises  can  be  sustained  is  that  he  might 
have  forbidden  their  use  for  selling  intoxicating  liquors.  This 
implies  that  he  had  no  absolute  right  to  let  them  for  that  pur- 
l)ose,  and  that  again  means  that  the  sale  of  liquor  is  absolutely 
within  the  control  of  the  legislature.^^  Upon  a  similar  reason- 
ing the  civil  damage  acts  in  cases  of  gambling  are  to  be  su])- 
ported.-^ 


--  Liquor  Tux  Law,  §  39. 

-3  Howes    V.    Maxwell,    157    Mass. 

-i  Trout  V.  :Marvhi,  62  Oh.  St.  132, 
5G  N.  E.  655. 

Note:  Subcontractors'  liens. — A 
similar  difficulty  is  presented  by  the 
provisions  of  the  Mechanics'  Lien 
Laws  which  allow  subcontractors  or 
laborers  to  file  liens  against  the 
property  upon  which  they  have  been 
employed,  for  labor  and  material 
furnislied  in  improving  it,  although 
there  is  no  privity  of  contract  be- 
tween them  and  the  owner.  This 
Itgislation  docs  not  fall  under  the 
]iolice  power,  since  it  is  enacted 
merely  for  the  enforcement  of 
private  claims,  and  will  therefore 
not  be  fully  considered  here.  See 
Boisot,  Mechanics'  Lieu  Ijaws,  §  23. 
it  is  sustained  in  a  number  of 
jurisdictions  upon  the  ground  that 
the    law    constitutes    the    contractor 


the  owner 's  agent  for  contracting 
with  others,  and  makes  the  owner 
the  surety  for  the  performance  of 
the  contractor's  subcontracts,  and 
that  the  law  may  thus  import  its 
stipulations  into  future  contracts  be- 
tween owner  and  contractor.  Hart 
V.  Boston  &c.  E.  E.  Co.,  121  Mass. 
510;  Bardwell  v.  Mann,  46  ]Minn. 
285,  48  N.  W.  1120;  Mallory 
V.  La  Crosse  Abattoir  Co.,  80 
Wis.  170.  Other  jurisdictions, 
however,  deny  that  the  law  may 
impose  burdens  upon  the  owner  as 
a  condition  of  allowing  him  to 
improve  his  property,  the  creation  of 
wliich  he  lias  not  by  any  act  of  his 
invited,  and  whicli  he  cannot  by  rea- 
sonable precautions  avoid.  Wat- 
ers V.  Wolf,  162  Pa.  St.  153; 
Palmer  v.  Tingle,  55  Oh.  St.  423.  45 
X.  E.  313;  .Tohu  Spry  Lumber  Co. 
V.  Sault  Savgs.  Bk.  Loan  &  Trust 
Co.,    77    :\rich.    199,   43    N.    W.    778. 


650  PAKTICULAK  BURDENS.  §  (J27 

If  the  power  of  prohibition  did  not  exist,  if  the  OAvntr  had 
a  constitutional  right  to  let  his  premises  for  the  sale  of  liquor, 
he  could  evidentl}^  not  be  held  for  consequences  of  the  exercise 
of  that  right  over  which  he  had  no  control. 

It  follows  also  from  the  principle  that  acts  which  are  of 
common  right  cannot  be  burdened  with  consequences  flowing 
from  acts  of  others  which  cannot  be  foreseen  or  avoided,  that 
when  the  tenant  sells  liquor  illegally  without  the  knowledge 
of  the  landlord,  the  latter  cannot  be  held  liable.--"' 

§  627.  Liens  under  U.  S.  revenue  laws.— The  llnited  States 
Revenue  laws,  under  which  land  used  for  an  illicit  distill- 
ery may  be  forfeited,  providers  that  no  bond  of  a  distiller 
shall  be  approved,  unless  he  is  the  owner  in  fee,  unencumbered 
by  any  mortgage,  judgment  or  other  lien,  of  the  lot  of  land  on 
which  the  distillery  is  situated,  or  unless  he  files  with  the  col- 
lector the  written  consent  of  tlie  owiici-  and  of  any  mortgagor 
or  lienor,  that  the  premises  may  be  used  foi*  the  i)urpose  of 
distilling  spirits,  subject  to  the  provisions  of  law,  and  expressly 
stipulating  that  the  lien  of  liie  United  States  for  taxes  and 
penalties  shall  have  priority  over  such  mortgage  or  lien,  and 
that  in  case  of  the  forfeiture  of  the  distillery  premises  the  title 
to  the  same  shall  vest  in  the  I'liitcd  States  discharged  from 
such  mortgage,  judgment  or  other  iiicuiiibrance.-'^ 

It  also  appears  from  the  case  of  United  States  v.  Stowell, 
last  cited,  that  personal  property  used  in  the  violation  of  the 
revenue  laws,  does  not  become  the  subject  of  forfeiture,  unless 
so  used  with  the  consent  or  connivance  of  the  owiiei-. 


Jf   the  law  is   to   be   free   from   the  ineiits  in;ule  by  the  owner  lo  tlie  coii- 

objc(;tion   of  creating  arbitrary  and  tractor    subsequent    to    sueh    notice, 

therefore    unconstitutional    burdens,  Kellogg   v.    Howes,    81    Cal.    170,    22 

it  should  make  the  owncM- or  liis  inop-  1  :ic.  509;  Rtinison  Mill  Co.  v.  Braun, 

erty  liabh-  at  most  for  tlie  fair  vahie  i;Ui  Cai.   122,  6S  i':ic.    ISl,  HT  L.  IJ. 

of  flui  labor  and  material  furnished,  A.  726,  1002. 

and     not     for     any     contract     price  -•"'State  v.    Williams,   I'.O    X.   .1.    L. 

agreed  upon  between  lienor  and  con-  102;   City   of  Canipbellsburg  v.  Oilc- 

tractor  in  excess  of  what  tlu;  owner  wait    (Ky.),   72   S.   W.   .">M. 

agreed   to  pay;   and  there  sliouhl  b(!  '-'"  Kev.  St.  §  ^2()2. 

either   a    provision    that   lien    notices  -"  Dobbins  v.  United  Sliites,  '.Mi  IT. 

must  be   fded    within   a   brief   period  S.  .■JD.'j;  United  States  v.  Stowell.  ]X', 

after   the   work    is   done,    or   ilmt    the  U.  S.  1. 
lien  notice  shall  invalidate  only  pay- 


§  628  DA.N'GEKS  FROM  KAILKOADS.  651 

§  628.  Dangers  arising  from  the  operation  of  railroads.  — It 
is  a  matter  of  common  experience  tliat  the  employment  of 
stfam  or  other  mechanical  power  for  purposes  of  locomotion 
is  attended  with  danger  to  the  safety  of  persons  and.  under 
certain  conditions,  of  property.  The  courts  recognise  this  by 
exacting  of  railroad  companies  an  extraordinary  degree  of 
care.  They  have,  moreover,  in  vieAv  of  the  difficulty  of  proving 
negligence,  raised  certain  presumptions  unfavorable  to  the  rail- 
road company  or  other  carrier:  thus  where  an  accident  hap- 
pens, and  the  passenger  shows  that  he  was  free  from  negli- 
gence, it  will  be  presumed  that  the  carrier  was  at  fault,^**  and  if 
fire  can  be  traced  to  the  locomotive  of  a  railroad  a  like  pre- 
sumption will  arisc^'-* 

Rules  that  the  courts  evolve  without  legislation  will  naturally 
also  he  sanctioned  bj^  the  courts  if  enacted  by  statute.^*^  In 
Xorth  Carolina  a  statute  has  been  upheld  which  shifts  the 
burden  of  proving  contributorj'  negligence  on  the  part  of  the 
passenger  to  the  railroad  company.^i  A  statute  of  Kentucky 
provides  that  the  killing  or  injuring  of  cattle  by  the  engine  or 
car  of  any  company  shall  be  prima  facie  evidence  of  negligence 
and  carelessness  on  the  part  of  the  company,  its  agents  and 
servants.^2  go  in  a  number  of  Southern  states,  statutes  makiner 
railroad  companies  responsible  for  all  damage  done  or  caused 
by  the  running  of  trains,  to  cattle  or  otherwise,  have  been 
interpreted  as  shifting  the  burden  of  proof,  and  have  been 
upheld  upon  this  construction.'''^ 

§  629.  Injuring  or  killing  of  cattle.— In  many  states  legisla- 
tion has  been  enacted  requiring  railroad  companies  to  fence 
their  tracks  in  order  to  prevent  the  straying  of  cattle  thereon. 
As  the  requirement  tends  to  protect  the  safety  of  trains  and 
passengers  as  well  as  that  of  the  cattle,  it  is  clearly  an  exercise 
of  the  police  power.^^     In  Kentucky  it  seems  to  be  justified 

28  Yeomans  v.  Contra  Costa  etc.  3?.  Ark.  816 ;  Tilley  v.  St.  Louis  &e. 
Co.,  44  Cal.  71.  R.  C,  49  Ark.  .53-5;  :\racon  &c.  R.  Co. 

29  Shearman  &  Redfield,  Negli-  v.  Vaughn,  48  Ga.  464;  Mobile  &c. 
gence  5th  Ed.  §  676.  R.    C.    v.    Williams,    53    Ala.    595; 

30  Augusta  &  S.  R.  R.  Co,  v.  Ran-  . Nashville' &  Chattanooga  R.  Co.  v. 
.lall,  79  Ga.  304.  Peacock,  1^5  Ala.  229. 

"1  Wallace    v.    Western    X.    C.    R.  " »  Thorpe   v.   Rutland   &c.   R.    Co., 

Co.,  104  N.  C.  442.  27  Vt.  140;   Railway  Co.  v.  Sharpe, 

32  Kentucky  Statutes  1899,  §  809.  38  Oh.  St.  150;   Pennsylvania  R.  C. 

33  Little  Rock  etc.  R.  Co.  v.  Payne,  v.  Riblet,  66  Pa.   St.   164;   Missouri 


652  PAETICULAE  BUEDENS.  §  629 

exclusively  as  a  measure  of  safety  of  traffic,  for  it  has  been 
held  to  be  an  unconstitutional  delegation  of  the  police  power 
to  leave  it  to  the  option  of  the  adjoining  land  owner  whether 
the  fence  shall  be  built  or  not.^^  It  is  generally  admitted  that 
where  the  requirement  exists,  the  company  failing  to  erect  or 
maintain  such  fence  may  be  made  liable  for  all  damage  to 
cattle  caused  thereby,^^  although  the  owner  allowed  his  cattle 
to  stray,  and  trespass  on  the  tracks. 3" 

It  has  also  been  held  that  a  statute  is  valid  which  makes  the 
railroad  company  liable  for  the  killing  or  injuring  of  stock  by 
moving  trains,  etc.,  on  unfenced  tracks,  the  act  being  inter- 
preted as  applying  to  stock  killed  in  consequence  of  the  neglect 
to  maint.-im  fences  and  as  containing  an  implied  requirement 
to  build  a  ''ence.^^  A  similar  statute  was  held  to  be  unconsti- 
tutional in  Washington,  partly  on  the  ground  that  no  provision 
was  made  for  the  case  that  no  fence  could  be  laAvfully  erected, 
and  also  because  the  erection  of  a  fence  would  apparently  ex- 
cuse from  liability  even  where  there  was  negligence. ^o  This  case 
evidently  assumes  that  an  absolute  liabilit}^  cannot  be  imposed. 
The  question  whether  in  the  absence  of  any  requirement  of 
fencing,  express  or  implied,  the  legislature  can  make  the  rail- 
road company  liable  for  the  killing  or  injuring  of  cattle  by 
the  running  of  trains  irrespective  of  negligence  or  of  the  lack 
of  fencing,  has  been  presented  to  the  courts  of  several  states : 
six  of  these  have  declared  such  law  to  be  unconstitutional,-*" 

Pac.  E.  Co.  V.  Humes,  115  U.  S.  512;  22  N.  W.  519,  71  Wis.  472,  37  N.  W. 

Missouri  Pac.  E.  Co,  v.  Harrelson,  44  834. 

Kan.   253,   24  Pac.  465;    .Johnson   v.  st  Conviu    v.    New    York    &    Eric 

Oregon  Short  Line  E.   Co.    (Idaho).  K.  E.  Co.,  13  N.  Y.  42;  otherwise  at 

53  I-.  11.  A.  744;  Illinois  Central  E.  c<unmon  law,  Mungcr  v.  Tonawanda 

E.  Co.  V.  Cridcr,  91  Tenn.  489,  19  S.  &c.  E.  E.  Co.,  4  N.  Y.  349. 

\\'_  (jis.  •'»  Sullivan  v.   Oregon  E.  E.  &   N. 

ar.  Owensboro    &c.    E.    E.     Co.    v.  Co.,  19  Or.  319. 

Todd,  91  Kv.  175,  n  L.  E.  A.  285;  'to  Oregon  E.  &  N.  Co.  v.  Smalley, 

rovim:    Hirniingham  etc  E.  E.  Co.  1   Wash.   St.   206,   23   Pac.   1008,   22 

V.  Parsons,  ]()(»  Ala.  662.  Am.  St.  Eep.  143. 

•■t'l  Missouri    \':i'\   H.  ^'o.  v.  ITnincs,  ■'<)  Zeigler  v.  N.  &  S.   Ala.   E.   •'(>., 

115  IT.  S.  512;   Birmingham   etc.  E.  58    Ala.    594;    Birmingham    etc.    E. 

CV*.  V.  Parsons,  100  Ala.  662;  .Tones  E.    Co.    v.    Parsons,    100    Ala.    662; 

V.  Cialena  ete.  E.  E.  Co.,  16  Iowa  6;  Biclenberg  &  Montana  etc.  E.  Co.,  8 

Texas  Cenlrnl  U.  E.  Co.  v.  Childress,  Mont.   271.   2   L.   E.  A.   813;    .Tensen 

64    Tex.    3 Hi;    Qnackonbush   v.    Wis-  v.  ITnion   {'acific  E.  Co.,  6  Utah  253. 

consin   &<•.    E.   E.   Co.,   62   Wis.   411,  4   L.   E.   A.   724;    Schenck  v.   Union 


§680  riKES  FROM  L0C0M0T1VE«.  G58 

while  one  court  lias  lei't  the  question  open."  The  .Suiifciue 
Court  of  the  United  States  has  not  yet  had  occasion  to  pass 
upon  the  question.  The  constitutionality  of  the  burden  may  br 
defended  ])y  the  analogy  of  the  absolute  liability  for  damage 
done  by  (ire;  but,  as  pointed  out  by  the  Supreme  Coui-t  of 
Connecticut,"* 2  in  this  case  the  animals  injured  are  where  they 
ought  not  to  be — trespassers  obstructing  the  defendant's  rail- 
road track,  directly  exposing  the  defendant's  property  to 
hazard  and  loss. 

§  630.  Fire  started  by  sparks  from  locomotives.— On  the 
other  hand  it  is  well  established  that  railroad  companies  may 
be  made  liable  for  losses  by  fire  communicated  to  property 
by  sparks  escaping  from  locomotives,  notwithstanding  the  fact 
that  they  have  used  every  possible  precaution.  The  law  upon 
the  subject  is  fully  reviewed  in  the  learned  opinion  of  Justice 
Gray  in  St.  Louis  &  S.  F.  R.  Co.  v.  ^Mathews.'^^  It  appears  that 
the  rule  of  absolute  liability  was  established  in  ^Massachusetts 
as  early  as  1840,  changing  the  earlier  rule  contained  in  the 
statute  of  1837,  which  absolved  the  railroad  company  on  proof 
of  due  caution  and  diligence.'*^  The  reasons  on  Avhich  this 
statute  was  maintained  are  stated  by  ShaAV,  Ch.  J.,  in  ITart 
v.  Western  Railroad  Co.  :^^ 

"Railroad  companies  acquire  large  profits  by  their  business. 
l>ut  their  business  is  of  such  a  nature  as  necessarily  to  expose 
the  property  of  others  to  danger;  and  yet,  on  account  of  the 
great  accommodation  and  advantage  to  the  public,  companies 
are  authorized  by  law  to  maintain  them,  dangerous  though  they 
are,  and  so  they  cannot  be  regarded  as  a  nuisance.  The  mani- 
fest intent  and  design  of  this  statute,  we  think,  and  its  legal 
effect,  are,  upon  the  consideration  stated,  to  afford  some, 
intlemnity  against  this  risk  to  those  who  are  exposed  to  it  and 
to  throw  the  responsibility  upon  those  who  are  thus  authorised 
1o  use  a  somewhat  dangerous  apparatus,  and  "vvho  realise  a 
l)rofit  from  it."^*^ 

J'iit-ific  R.  Co.,  5  Wyo.  430;   Cateril  ^^  Grissell  v,  Housatonic  R.  R.  Co., 

V.  Union  Pacific  E.  E.  Co.,  2  Id.  540,  54  Conn.  447. 

21  Pac.  416;  Oregon  R.  R.  Nav.  Co.  •»•'' 165  U.  S.  1. 

1008,  22  Am.  St.  Eep.  14.3.  44  Lyman    v.    Boston    &    Worcester 

•ti  Wadsworth   v.   Union  Pa<-ifi<'   R.  R.  R.  Co.,  4  Cnsh.  288. 
V.  Smalloy,  1   Wash.  St.  206,  23  Pac.  -t-"-  13  Mete.  99. 

Co.,  18  Col.  600,  23  L.  R.  A.  812.  40  See,     also,     Grissell    v.     Housa- 


654 


PAETICULAE  BUEDE.XS. 


^631 


§  631.  Railroad  crossing's.  — The  obligation  freqnently  ex- 
pressed in  railroad  charters  tliat  the  railroad  company  shall 
l^nt  highways  which  they  cross  in  such  condition  and  state  of 
repair  as  not  to  impair  or  interfere  with  its  free  and  proper 
use,  relates  to  highways  in  existence  when  the  railroad  is  built. 
In  the  absence  of  any  positive  regulation  the  expense  of 
carrying  a  new  street  over  a  railroad  must  be  borne  by  the 
municipalit}^  laying  out  the  street,'^^  and  in  Illinois  an  ordinance 
requiring  the  railway  company  to  make  a  safe  and  proper 
crossing  was  held  invalid.'^ *^  It  is  held  in  IMassachusetts,  Minne- 
sota and  Kansas  that  the  railroad  company  is  entitled  to  com- 
pensation for  i^lanking  its  roadway  at  the  crossing  of  a  new 
street,"^ ^  and  in  IMichigan  such  compensation  may  be  claimed 
as  a  constitutional  right.-''*' 

Gradually,  hoAvever,  the  view  has  been  gaining  ground  that 
the  duty  to  make  crossings  safe  may  be  imposed  upon  railroad 
companies,  although  the  highway  is  built  across  the  railroad 
and  not  vice  versa.  In  some  cases  this  duty  Avas  created  under 
a  reserved  power  to  allow  th(>  corporate  charter,^  but  the  re- 
quirement has  also  been  maintained  in  the  absence  of  any  such 
reservation  as  an  exercise  of  the  police  power.-  In  Illinois  a 
law  of  1869^  provided  that  "hereafter,  at  all  of  the  railroad 


tonic  &c.  R.  E.  Co.,  54  Conn.  447 ; 
Flinn  v.  New  York  C.  &  H.  E.  E.  Co., 
342  N.  Y.  11,  36  N.  E.  104G;  Balti- 
more &  Ohio  E.  E.  Co.'  V.  Krcager, 
61  Oh.  St.  312,  .56  N.  E.  203. 

47  Northern  Central  E.  E.  Co.  v. 
Baltimore  E.  E.  Co.,  46  Md.  425; 
People  V.  Lake  Shore  &  M.  S.  E.  Co., 

C2  Jlich.  277. 

48  Illinois  Central  E.  Co.  v. 
Bldomington,  76  111.  447.  It  was 
Kaid  in  a  later  declKion  llial  the 
point  Avas  left  undecMded  in  IKia 
tase  which  merely  held  Ui;i1  IIk:  city 
liaving  made  the  crossing  conhl  not 
recover  the  expense  from  the  rail- 
road company  ((!hicago  &  N.  W.  E. 
Co.  V.  Chicago,  140  111.  309). 

■•"State  V.  ITcnnojiiii  T'n.  Dis(r. 
Ct.,  42  Minn.  247,  7  I..  \l.  A.  IJI  ; 
Boston  &  Albany  E.  Co.  v.  <'ain- 
bridge,  159  Mass.  283;  Kansas  Cen- 


tral E.  E.  Co.  V.  County  Commission- 
ers, 45  Kaus.  716. 

T'O  Chicago  &  Grand  Trunk  E.  Co. 
V.  Hough,  61  j\Iieh.  507;  compare 
with  Peoj^le  v.  Lake  Shore  &  M.  S. 
E.  Co.,  52  Mich,  277,  where  it  was 
intimated  that  the  railroad  com- 
pany might  be  hold  for  the  expense 
of  making  approaches. 

^  Albany  &c.  E.  Co.  v.  Brdwiicll, 
21  N.  Y.  .345;  Portland  &c.  E.  Co.  v. 
Decring,  78  Maine,  61;  New  York  & 
N.  E.  E.  Co.  V.  Waterbury,  60  Conn. 
1. 

-  i'.ostcui  &c.  E.  Co.  V.  Eailroail 
C(>inniissioners,  79  Me.  386;  Balti- 
more &  O.  S.  W.  B.  E.  Co.  V.  State 
(Ind.),  65  N.  E.  .508. 

•'•Now  §  8  of  11h>  Act  of  1874,  re- 
garding fencing  and  operation  of 
j'ail  roads. 


^  (];U  RAILROAD  CROSSINGS.  055 

crossings  oi"  liijiliwjiys  iind  streets  in  tliis  state,  the  sever;!! 
railroad  eorporations  shall  eonstriiet  and  maintain  said  ei-oss- 
in<^s  and  the  approaches  thereto,  within  their  respective  rij^hls 
of  way,  so  that  at  all  times  they  shall  be  safe  as  to  persons  and 
property'."  The  Supreme  Court  of  Illinois  regards  this  as  a 
legitimate  police  regulation,  no  niattei-  whether  the  highway 
comes  to  the  railroad  or  the  railroad  to  the  highway.^  This 
view  has  been  practically  adopted  by  the  Supreme  Court  of 
the  United  States/^ 

As  the  safety  of  crossings  may  require  the  elevation  or  de- 
l)ression  of  tracks  and  involve  great  expense,  it  is  proper  to 
inquire  whether  the  imposition  of  the  duty  is  in  accordance 
with  constitutional  principles.  The  problem  is  here,  as  in  the 
case  of  cattle  guards  and  fences,  one  of  causation  and  responsi- 
bilit3\  Can  the  railroad  company  be  held  accountable  for 
dangers  resulting  from  improvements  which  are  not  for  its 
benefit  and  which  it  has  not  invited  ?  Is  it  not  true  that  the 
municipalit}'  in  directing  travel  across  the  railroad  creates  a 
new  danger  which  the  operation  of  the  railroad  itself  would 
never  have  caused  ?  This  contention  has  been  answered  by 
pointing  out  that  travel  across  the  railroad  is  as  much  a  neces- 
sity as  travel  on  it,  and  that  the  avoidance  of  accidents  Avitli 
regard  to  it  is  one  of  the  inevitable  risks  of  railroad  opera- 
tion, for  which  the  owners  of  the  railroad  may  be  held  re- 
sponsible no  matter  at  wha|;  time  tlie  travel  is  conducted  across 
the  road.  "Unless  every  railroad  company  takes  its  right  of 
way  subject  to  the  right  of  the  pul)]ic  to  have  other  roads 
constructed  across  its  track  whenever  the  public  exigency 
might  be  thought  to  demand  it,  the  grant  of  the  privilege  to 
construct  a  railroad  across  the  state  w'ould  be  an  obstacle  in" 
the  way  of  its  future  prosperity  of  no  inconsiderable  magni- 
tude."^ Consequently  "every  railroad  companj^  takes  its 
right  of  way  subject  to  the  right  of  the  public  to  extend  the 
public  highways  and  streets  across  such  right  of  way;""    and, 

4  Chicago  &  X.  W.  R.  Co.  v.  Chi-  Railroads,  V27  Mich,  219,  86  N.  W. 
cago,  140  111.  309,  the  point  not  be-  842,  affirmed  Detroit  &e.  Ry.  v.  Os- 
ing  directly  involved  in  the  case.  born,  189  U.  S.  383. 

5  Chicago,  B.  &  Q.  R.  Co.  v.  Chi-  c  Chicago  &  A.  R.  Co.  v.  Joliet 
cago,   166  U.  S.   226.     Similar  prin-  etc.  R.  Co.,   105  111.  388. 

eiple     where     one     railroad     crosses         ^  Chicago  &  N.  W.  R.  Co.  v,  Chi- 
inother   railroad.      See   Detroit,   Ft.     cago,  140  111.  309. 
W.  &  B.  T.  Rv.  v.  Commissioners  of 


656  PARTICULAE  BURDENS.  ;<  632 

if  so,  the  imposition  upon  it  of  the  burden  of  measures  required 
for  the  safety  of  the  highway  from  dangers  due  to  the  opera- 
tion of  the  railroad  is  justifiable. 

It  is,  however,  also  true  that  the  operation  of  the  railroad 
would  not  cause  danger  at  the  particular  place  if  it  were  not 
for  the  new  establishment  of  the  highway.  There  is  at  least 
a  divided  responsibility,  and  this,  together  with  the  great 
expense  of  raising  or  lowering  tracks,  has  led  in  many  instances 
to  agreements  between  municipalities  and  railroad  companies, 
by  which  the  burden  of  the  abolition  of  grade  crossings  is 
divided  between  both.^  In  the  New  England  States  provision 
has  been  made  by  statute  for  an  apportionment  of  the  burden, 
in  which  the  state  shares.'^ 

§  632.  Injury  to  passengers.— Nebraska  seems  to  be  the  only 
state  which  imposes  upon  railroad  companies  a  liability  not- 
withstanding due  diligence  on  their  part  or  slight  negligence 
on  the  part  of  the  passenger.  The  statute  reads i^^^  "Every 
railroad  company  shall  be  liable  for  all  damages  inflicted  upon 
the  person  of  passengers  while  being  transported  over  its  road 
except  in  cases  where  the  injury  done  arises  from  the  criminal 
negligence  of  the  person  injured,  or  where  the  injury  com- 
plained of  shall  be  the  violation  of  some  express  rule  or  regula- 
tion of  said  road  actually  brought  to  his  or  her  notice. ' '  Crim- 
inal negligence  has  been  defined  as  flagrant  and  reckless 
disregard  of  one's  own  safety  and  mdifference  to  injury  liable 
to  follow."  The  statute  has  been  ui)held  in  a  number  of  eases 
without  a  thorough  discussion  of  principle  ;^2  and  in  a  recent 
case  the  court  says:^-'  "Whether  these  decisions  are  altogether 
sound  in  principle  we  will  not  stop  now  to  inquire.  They 
sihince  opposition  by  their  mere  numerical  strength,  and  with- 
out ncknowledging  a  servile  submission  to  precedent  we  feel 

8  See  Brooke  v.  Philadelphin,   162  277;    New  York  &   N.    K.  R.   Co.   v. 

Pa.  123;  Argentine  and  A.  T.  &  St.  Bristol,  151  U.  S.  556. 

V.   R.    Co.,   55   Kan.    7.30;    Kolly   v.  lo  Compiled  Statutes,  eh.   72,  Art. 

Minneapolis,  57  Minn.  294;  Chicago,  T,  §  3. 

B.  &  Q.  R.  Co.  V.  Nebraska,  170  IT.  "  Cliicago,    B.    &    Q.    \<.    Co.    v. 

S.   57;   Chicago  v.  .Tackson,   IOC)    111.  Hague,  48  Neb.  97. 

496,  63  N.  E.  1013.  '-'Union   P.  R.   Co.   v.   Porter,   38 

"Boston    &    A.    R.    Co.    v.    County  Neb.   226,   "it   is   not   believed   that 

Commissioners,   116   Mass.  73;   Laws  the  statute  is  unconstitulimKil.  " 

1«90,  eh.  428;  Rev.  Laws,  di.   Ill,  §  '-t  Chicago,    R.    I.    &    P.    R.    Co.    v. 

149;    Wof.dnifr    v.    Cnllin,    HI    Cnrui.  Ynung,  58  Neb.  678.  79  N.  W.  556, 


§  63:5  PERSONAL  INJURIES.  G57 

bound  to  accept  them  as  conclusive  evidence  oi'  wlial  Ihc  law 
is."  The  Supreme  Court  of  the  United  States  has  affirmed 
another  decision  involving  the  same  statute,  partly,  it  is  true, 
upon  the  ground  that  the  railroad  company  accepted  th.- 
liability  with  its  charter,  but  strongly  intimating  that  the  rule 
of  absolute  liability  is  justifiable  on  principle.^ ^ 

§  633.  Absolute  liability  for  personal  injuries  under  other 
legal  systems.— As  early  as  1838  a  Prussian  law  provided  :  'A 
i-ailroad  company  is  bound  to  compensate  for  all  damage  aris- 
ing in  the  carriage  on  its  road  to  the  persons  or  goods  carried 
or  to  other  persons  and  their  property,  unless  it  can  prove 
that  the  damage  w-as  caused  b}^  the  fault  of  the  person  injunnl 
or  by  an  inevitable  outward  accident.  The  dangerous  char- 
acter of  the  enterprise  itself  is  not  to  be  regarded  as  .such 
accident  relieving  from  responsibility." 

A  German  Imperial  Law  of  1871  provides :  "If  in  the  opera- 
tion of  a  railroad  a  person  is  killed  or  injured  in  his  body,  the 
manager  or  owner  is  liable  for  the  resulting  damage  unless  he 
shows  that  the  accident  was  caused  by  a  force  of  nature  or  by 
the  person's  oa^ti  fault." 

The  liability  thus  extends  to  passengers,  servants  and 
strangers  equally. 

The  same  principle  was  adopted  in  favor  of  workmen  only, 
but  so  as  to  include  factories,  mines,  quarries,  engineering 
works,  buildings  above  30  feet  in  height,  and  agricultural  em 
ployments,  by  the  English  Workmen's  Compensation  Acts  of 
1897  and  1900.  The  workman  loses  his  right  only  if  his  own 
serious  and  wilful  misconduct  is  the  cause  of  the  accident. 

Compare  Report  of  Industrial  Commission,  IV,  p.  29,  which 
says:  "No  witness  demands  that  the  law  of  employers'  liabil- 
ity shall  be  made  as  broad  as  in  Great  Britain,  where  the  em- 
ployer is  liable  for  a  limited  amount  of  damages  on  account 
of  injury  from  any  cause  whatever,  in  the  absence  of  con- 
tributory negligence  on  the  part  of  the  employee  injured." 

§  634.  Constitutionality  of  absolute  liability.  — If  the  rule 
of  absolute  liability  is  held  to  be  unconstitutional,  it  must  be 
on  the  ground  that  justice  and  equality  forbid  that  a  person 
be  required  to  make  good  the  loss  of  another,  unless  some  fault, 

14  Chicago,  R.  I.  &  Pac.  R.  Co.  v.      610,  S.  C.  183  U.  S.  582. 
Zernecke,  59  Neb.  689,  55  L.  R.  A. 

42 


658  PARTICULAR  BURDENS.  §  634 

or  cul])<ibilit.y,  can  be  imputed  to  liiiii.  This  is  the  position 
taken  by  the  courts  of  Alabama,  ^NTontana,  Wyoming,  and 
Utah.^^  But  while  the  common  law  does  require  fault  of 
some  kind  as  a  general  principle,  it  has  always  recognised 
some  exceptions  (trespass  of  cattle,  fire,  etc.),  and  it  cannot 
be  said  that  the  rules  of  the  common  law  represent  the  only 
and  final  conclusions  of  justice. "•  The  principle  that  inevitable 
loss  should  be  borne  not  by  the  person  on  whom  it  may  hap- 
pen to  fall,  but  by  the  person  who  profits  by  the  dangerous 
business  to  which  the  loss  is  incident,  embodies  a  very  in- 
telligible idea  of  justice,  and  which  seems  to  be  in  accord  with 
modern  social  sentiment.  Moreover,  the  rule  of  absolute  liabil- 
ity is  established  in  our  law  in  the  case  of  fires  caused  by  loco- 
motives and  has  been  sanctioned  by  the  United  States  Supreme 
Court.''  Tt  also  underlies  the  rule  of  respondeat  superior, 
since  the  empkn-er  cannot  relieve  himself  from  liability  for 
acts  done  by  the  servant  within  the  scope  of  his  employment, 
b.y  proof  of  the  greatest  possible  care  in  the  selection  of  the 
servant.  Logic  and  consistency,  therefore,  demand  that  liabil- 
ity irrespective  of  negligence  should  not  be  denounced  as 
iniconstitutional.  The  required  element  of  causation  may 
readily  be  found  in  the  voluntary  employment  of  dangerous 
instruments  or  agencies.  Some  preceding  voluntary  act,  it 
seems,  ought  to  exist,  in  order  to  justify  liability;  tlius  it 
seems  that  where  a  railroad  company  as  common  carrier  is  un- 
ilcf  a  duty  to  receive  cattle  for  transportation,  it  cannot  be 
held  liable  for  bringing  into  a  state  cattle  which  eonnnunicates 
Texas  fever,  if  it  had  no  reason  to  believe,  after  the  exercise 
of  the  utmost  diligence,  that  the  cattle  it  received  for  trans- 
j)ortation  were  liable  to  impart  or  capable  of  communicating 
the  fever.' ^ 

Tile  Supi-eme  Court  ol'  I'tah,  in  recognising  the  rule  of  ab- 

!'•  See  §  629,  supra.  Cris&oll  v.    ridiisiildiiic  R.  R.  Co.,  o4 

"■•"Tlio  principlo  of   tlic  common  Conn.  447. 

law,    tliat    for    a    lawful,    roasoiiahic  '"  It   has   also    been    recognized    in 

urnl    careful    use    of    property    the  llic    case    of   a    statute   creating   an 

owner  cannot  he  made  liable,  is  not  absolute   liability    for    damage   done 

HO   wrought   into   the  const  it  nt  ion    or  to     highways     by     lierds     of     cattle, 

into   the  very  idea  of  property   that  .fones  v.  Brim,  165  U.  S.  180. 

it    cannot    ))e   departed    Iripni    liy    the  i"*  Missouri,    K,    &    S.    R.    Co.    v. 

legislature   where  protection    to   per-  Tlaber,   160  U.  S.,  p.  613,  636. 
sons  or  to  proyiorty  may  rc(|iiirc  it." 


^  (j;^^  PENAL  LIAIilLIT^-  AND  FAl'LT.  659 

solute  liability  in  case  oi"  (hiiiiauc  done  by  eattio  to  lii^diways, 
(iistinguished  the  decision  from  that  in  which  the  absolut<' 
liability  of  railroad  companies  for  stock  killed  had  been  held 
to  be  unconstitutional,  by  pointing  out  that  railroad  companies 
Avcre  undei-  duly  to  i-iiu  tlii-ir  trains,  thus  apj^lyin^  the  priii- 
cii)le  that  absolute  liability  can  be  attached  only  to  a  volun- 
tary act.'-'  However,  the  running  of  trains  is  so  essential  to 
the  operation  of  a  railroad,  that  the  duty  nnist  be  regarded  as 
voluntarily  assumed  in  opening  the  road  for  traffic. 

i;  635.  Penal  liability  and  fault— Wrongful  intent  dispensed 
with. — The  question  whether  wrongful  intent  is  essential  to 
the  commission  of  a  crime,  has  been  greatly  discussed  by 
writers  on  criminal  law.-"  Whatever  may  be  the  true  prin- 
ciple in  case  of  felonies,-'  it  is  well  established  that  in  the 
case  of  misdemeanors  (which  include  nearly  all  police  ott'enses) 
the  legislature  may  dispense  with  the  requirement  of  wrong- 
ful intent,  understanding  thereby  the  intent  to  violate  the 
law.  Under  the  Avording  of  the  statutes,  such  intent  has  )iot 
been  held  to  be  essential  to  make  a  person  liable  for  selling 
adulterated  food  or  milk.-- 

In  these  cases  there  is  a  voluntary  act  Avhich  the  party  does 
at  his  peril,  and  he  is  not  excused  either  by  ignorance  of 
law  or  ignorance  of  fact.  Either  kind  of  ignorance  implies 
a  fault,  and  it  must  be  assumed  that  with  due  diligence  the 
true  character  of  the  act  could  have  been  ascertained.  The 
statute  of  Illinois  against  adulteration  of  food  provides  that 
no  person  shall  be  convicted  under  any  of  the  sections  of  the 
act,  if  he  show^s  to  the  satisfaction  of  the  court  or  jury,  that 
be  did  not  know  that  he  was  violating  any  of  the  provisions 
of  the  act,  and  that  he  could  not,  with  i-easonable  diligence 
have  obtained  the  knowdedge.2-> 

AVhere  the  law  prohibits  the  possession  of  killed  game  dur- 

!!•  Brim  v.  Jones,  11  Utah  '200,  '29  CommomTealth    v.    Farren,    9    Allen 

1..  R.  A.  97.  489.      "If    the    legislature    deem    it 

■-"Bishop    New    Criminnl    T^aw    I,  important   that   those   who  sell   shall 

Jji;   285-336,  425-429.  be    held    absolutely    liable    notwith- 

■ii  See  Reg  v.  Tolson,  23  Q.  B.  Div.  standing     their     ignorance     of     the 

168;     Commonwealth     v.     Mash,     7  adulteration,  we  can  see  nothing  un- 

^letc.  472,  and  Bishop's  note  there-  reasonable     in     throwing     this     risk 

to,  New  Cr.  L.  I.  §  303a,  notes  15,  upon  them;"  also  Commonwealth  v. 

16,  18.  Evans,  132  Mass.  11. 

22  People  V.  West,  106  N.  Y.  293;  -',-!  Criminal  Code.  §   9ni. 


660 


PARTICULAE  BURDENS.  8  635 


ing  the  close  season,  it  has  been  held  to  be  no  valid  defence 
that  the  game  was  killed  and  acquired  during  the  open  sea- 
son.2-*     This  decision  assumes  that  it  is  possible  so  to  arrange 
the  killing  and  buying  of  game  that  it  will  be  disposed  of  en- 
tirely during  the  open  season.     A  statute  of  ^Maryland  pro- 
vided that,  any  person  should  be  liable  to  an  indictment  who 
should  have  in  his  possession  any  book  or  record  of  numbers 
drawn  in  any  lottery  or  any  record  of  any  lottery  ticket.    The 
accused  alleged  that  the  articles  were  given  him  by  some  one 
he  did  not  know,  to  deliver  them  to  another  man,  and  that  he 
had  no  knowledge  what  the  articles  were.     It  was  held  that 
it  was  not  necessary  to  allege  or  show  knowledge;  that  on 
grounds  of  necessity  mere  possession  might  be  made  to  con- 
stitute the  offense ;  it  being  intimated  that  under  a  reasonable 
construction  of  the  statute  an  innocent  finder  or  other  clearly 
innocent  holder  would  not  be  punishable,  or  would  at  most 
have  a  nominal  fine  imposed  upon  him— the  latter  alternative, 
it  would  seem,   a  somewhat   questionable   expedient.^"     Per- 
haps a  penalty  may  be  imposed  notwithstanding  that  the  un- 
lawful character  of  the  act  could  not  have  been  ascertained  ■ 
with  due  diligence,  if  the  act  itself  may  be  entirely  forbidden. 
So  a  person  might  be  punished  for  selling  liquor  to  a  minor, 
though  the  minor  represented  himself  to  be  of  age,  and  his 
true  age  could  not  be  discovered.     And  so  as  to  a  sale  to  a 
habitual  drunkard.^^     It  is  held  in  New  Hampshire  that  the 
legislature   may   provide   for    double    damages    for    injuries 
caused  by  the  bite  of  a  dog ;  "  it  was  to  discourage  the  keep- 
ing of  such  dogs  that  the  penalty  was  imposed,"-"   and  the 
keeping  of  dogs  is  under  the  absolute  control  of  the  legislature. 
Mere  protective  measures  may,  of  course,  be  taken  whether 
the  party  whose  property  is  affected  thereby  is  at  fault  or  not ; 
so  animals  straying  at  large  may  be  impounded  irrespective  of 

24  Smith    V.    state,    155    Ind,    611,  8  N.  E.  898;  Commonwealth  v.  Zelt, 

58  N.  E.  1044,  51  L.  R.  A.  404.  138  Pa.  615,  11  L.  K.  A.  602;  State 

20  Ford  V.  State,  85  Md.  465.  v.    Hartfiel,    24    Wis.    60.      In    Oliio 

20  Under    tlio    following    decisions  ;nid  Indiana  ignorance  has  been  held 

ignorance  does  not  protect:      Farmer  1.>  be  a  protection;    iMillor  v.  State, 

V.     People,     77     111.     322;     Ilnmpe-  3  Oh.  St.  475;  State  v.  Kalb,  14  Ind. 

ler    V.    People,    92    111.    400;    .Tami-  403;  Farrell  v.  State,  45  Tnd.  ."^71. 
son  V.  Burton,  43  lo.  282;  Common-  27  Craig  v,  Gerrish,  58  N.  H.  513. 

wealth    V.    Julius,    143    Mass.    132, 


§  636  PENAL  LIABILITY  AND  IGNORANCE.  661 

any  nep:lip:ence  on  the  part  of  their  owner;  and  h<'  may  Ix- 
charged  with  the  cost  of  impounding.-*' 

i5  636.  Knowledge  presumed.— The  Supreme  Court  of  Mas- 
sachusetts says:  ''Of  course,  all  liability  is  measured  by  thir 
defendant's  knowledge.  The  question  accurately  stated  is 
what  knowledge  is  sufficient  to  throw  the  peril  of  action  upon 
the  person  who  does  a  certain  act."-''  And  this  is  further  ex- 
plained as  follows:  "When  according  to  common  experience 
a  certain  fact  generally  is  accompanied  by  knowledge  of  the 
further  elements  necessary  to  complete  what  it  is  the  final  ob- 
ject of  the  law  to  prevent,  or  even  short  of  that,  when  it  is 
very  desirable  that  people  should  find  out  whether  the  fur- 
ther elements  are  there,  actual  knowledge  being  a  difficult  mat- 
ter to  prove,  the  law  may  stop  at  the  preliminary  fact,  and, 
in  the  pursuit  of  its  policy,  may  make  the  preliminary  fact 
enough  to  constitute  a  crime.  It  may  say  that,  as  peoj)le  gen- 
erally do  know  when  they  are  selling  intoxicating  liquors, 
they  must  discover  at  their  peril  whether  what  they  sell  will 
intoxicate.  It  may  say  that  if  a  man  will  have  connection 
with  a  woman  to  whom  he  is  not  married,  he  nmst  take  the 
chance  of  her  turning  out  to  be  married  to  some  one  else. 
In  like  manner  it  may  say  that  people  are  not  likelj''  to  resort 
to  a  common  gaming  house  without  knowing  it,  and  that  they 
must  take  the  risk  of  knowing  the  character  of  the  place  to 
which  they  resort,  if  the  implements  of  gaming  are  actually 
present. '  '^" 

§  637.  Penal  liability  of  railroad  companies.— Railroad  com- 
panies or  their  agents  cannot  be  made  liable  criminally  or  in 
penal  damages  for  the  killing  of  stock  without  any  neglect  on 
their  part.^^  The  killing  is  not  a  voluntary  act,  and  the  run- 
ning of  the  trains  a  lawful  occupation  which  the  legislature 
could  not  prohibit  entirely.  The  matter  assumes  a  different 
aspect  where  the  railroad  company  neglects  to  fence  its  tracks; 
this  supplies  the  element  of  fault,  and  penal  liability  is  jus- 

28  MeVey  v.  Barker,  92  Mo.  App.  Ccrdes  v.  State,  37  Kan.  48:  knowl- 
498.  edge    sufficient    to    excite    the    sus- 

29  Commonwealth    v.    Regan,     182  picions  of  a  prudent  man  would  be 
Mass.  22,  64  N.  E.  407.  equivalent  to  knowledge  of  the  ulti- 
mo Commonwealth    v.    Smith,    166  mate  fact. 

Mass.  370,  44  N.  E.  503,  1896.    Also         si  State  v.  Divine,  98  N.  C.  778. 


662  PAETTCrLAR  BUEDEXS.  §  637 

tified.22    'phe  validity  of  penal  liability  has  been  denied  under 
statutes  making  simply  an  exception  in  favor  of  railroad  com- 
panies fencing  their  tracks,  on  the  ground  that  as  the  statute 
imposes  no  duty  to  fence,  there  is  no  fault.^'^    The  penal  liabil- 
ity in  the  acts  for  the  protection  of  live  stock  is  generally 
imposed  for  damage  caused  by  the  absence  of  the  fence.    Puni- 
tive damages  or  other  penalties  have  also  been  imposed  by 
statute  for  failure  to  pay  for  the  injury  done  within  a  stated 
time  after  notice  is  given  to  the  railroad  company.     Such  a 
penalty  has  been  declared  invalid  in  North  Carolina^^  and  in 
Xebraska.35     The   Supreme   Court   of  the   United   States  has 
sustained  a   law  giving  punitive  damages  in  case  of  refusal 
to  pay  within  thirty  days    after    demand,    but    the    penalty 
was  imposed  only  if  the  duty  to  fence  was  neglected.^*^     To 
impose  a  penalty  simply  because  a  claim  is  resisted,  seems  to 
violate  the  constitutional  right  to  due  process  and  equal  jus- 
tice; for  if  there  is  a  defence  to  the  claim  there  must  be  an 
opportunity  to  have  an  ndjudication  upon  it;  the  penalty  can 
be  legitimate  only  if  the  litigation  shows  that  a  defence  was 
interposed  vexatiously,  for  the  purpose  of  delay. ^"     The  de- 
cision in  Minneapolis,  &c,  R.  R.  Co.  v.  Beekwith  can  be  recon- 
ciled with  this  view  by  treating  the  statute  in  question  ;is  im- 
posing a  penalty  for  failure  to  fence,  and  remitting  the  penalty, 
if  the  claim 'is  paid  Avithout  litigation. 

In  Atchison,  &c,  R.  R.  Co.  v.  ]\ratthews:>^  the  Supreme 
Court,  in  sustaining  a  statute  imposing  the  payment  of  an  at- 
torney's fee  upon  railroad  companies  in  actions  against  them 
for  damages  in  case  of  loss  by  fire  caused  by  spai'ks  from 
locomotive,  said:  "If  in  order  to  accomplish  a  given  beneficial 
result,  a  result  which  depends  upon  the  action  of  a  corporation, 

32  Cairo  &  St.  L.  E.  Co.  v.  Peoples,  37,  pnrtly  by  reason  of  special  con- 

92  111.  97  ;  Tredway  V.  Sioux  City  &c.  stitiitionnl     prnvisions    not     toiu'liiii;^ 

E.  R.  Co.,  43  la.  5li7;   Missouri  Pac.  the  gencinl  |irinciiil(>  of  li;il)ility. 
E.    Co,    V.    Humes,    115    U.    S.    512;  so  :\liniieai)olis  &  St..  L.  E.  E.  Co. 

liarnett  v.  Atlantic  &  P.  R.  Co.,  68  v.  Beekwith,  129  U.  S.  2(5. 
Mo.    56;    where    the    ])cnal    liability  :'7  See   especially   remarks   in    Cot- 

eonsists  in  double  damafri-s,  1he  jicii-  ting  v.  Kansas  C.  St.  Y.  Co.,  183  IT. 

ally    is    also    indpnrHonate    to    the  S.  79,  100,  102;  but  see  Union  Cent. 

<  ITfjnse.  T'ife  Tns.   Co.  v.  Chowning,   86   Tex. 

•■■•I  Wa.lHWorth     V.     Union     Pac.    E.  654.  26  S.  W.  982,  24  T..  R.  A.  504, 

Co.,  18  Col.  600,  23  li.  H.  A.  812.  an<l   I'nrthcr  as  to  attorney's  fees  §§ 

■Instate  V.  Divine,  98  N.  C.  778.  714,  727,  infra. 

.-.r.  A.  &   N.  E.  r-n.  V.  Baty,  6  Neb.  ;'«  174  U.  S.  96. 


§  638  PENALTY  CORRESPOxXDIXG  TO  FAULT.  Ofi^ 

the  legislature  has  the  power  to  ])rescribe  a  specific  duty,  and 
punish  a  failure  to  comply  therewith  by  a  penalty,  either 
double  damages  or  attorney's  fees,  has  it  not  equal  power  to 
prescribe  the  same  penalty  for  failing  to  accomplish  the  same 
result,  leaving  to  the  corporation  the  selection  of  the  means 
it  deems  best  therefor  ?"^'-^  The  court  assumes  that  it  is  within 
the  power  of  the  corporation  to  produce  the  desired  result ; 
in  other  words,  that  it  is  at  fault  in  not  producing  it.  If  this  as- 
sumption is  incorrect,  if  the  highest  degree  of  care  will  not  pre- 
vent the  injury,  the  inij^osition  of  the  penaltj'  cannot  be 
justified  on  principle;  but  the  imposition  of  an  attorney's  fee 
need  not  necessarily  be  regarded  as  a  penalty.  If  treated  as 
part  of  the  compensation,  it  may  be  included  in  the  absolute 
liability  for  the  inevitable  loss. 

§  638.  Penalty  corresponding  to  fault.— It  has  been  held 
in  Illinois  that  a  provision  of  law  giving  a  cause  of  action 
for  any  accident  in  a  mine,  as  a  penalty  for  the  neglect  to 
employ  a  mine  manager  as  required  by  statute,  in  a  case  where 
the  accident  was  not  due  to  his  non-employment,  was  void, 
because  there  was  nothing  in  the  title  of  the  act  to  indicate 
.such  liability,  and  it  Avas  held  not  to  be  a  proper  means  of 
enforcing  the  statutory  duty,  so  that  the  title  might  have  given 
notice  of  it.^*^  It  may  also  be  contended  that  since  under  the 
constitution  of  Illinois  all  penalties  must  be  proportioned  to 
the  nature  of  the  offense,  the  liability  for  an  accident  which 
has  no  connection  with  the  neglect  of  the  statutory  duty,  must 
be  unconstitutional,  since  it  bears  no  intelligible  relation  or 
proportion  to  the  offense. 

As  a  general  principle,  the  neglect  of  a  statutory  duty  will 
justify  the  imposition  of  a  penalty;  but  a  person  cannot  be 
made  penally  liable  without  any  fault  whatever,  while  he  may 
be  made  liable  civilly  for  the  injury  resulting  from  the  danger- 
ous use  to  which  he  has  put  his  propert}^  though  not  otherwise 
in  fault.  The  difference  is  that  the  imposition  of  a  civil  liabil- 
ity is  in  the  nature  of  a  regulation,  while  penal  liability  is  not 
regulation,  but  punishment  for  the  violation  of  a  regulation. 

39  p.  102.  40  Woodruff  v.  Kellyville  Coal  Co., 

182  111.  480,  55  N.  E.  550. 


CHAPTER    XXX. 

SPECIAL  PRIVILEGES. 

A.     DISCRIMINATIVE  LICENSES.     §§  639-655. 

5  639.  Cases  calling-  for  discrimination. — A  license  does  not 
necessarily  involve  personal  discrimination ;  it  is  sometimes  in 
reality  an  occnpation  tax;  in  other  eases  it  is  simply  a  certificate 
that  certain  conditions  which  have  been  ])rescribed  by  law,  and 
which  do  not  reqnire  i)artieular  personal  qualification,  have 
been  complied  with,  as  in  a  license  to  incorporate,  or  in  case 
of  building-  regulations,  where,  however,  the  term  "permit" 
is  more  commonly  used.^  There  are,  however,  other  licenses 
which  proceed  upon  the  idea  of  discrimination,  either  accord- 
ing to  the  circumstances  of  specific  cases  or  according  to  per- 
sonal differences.  Since  the  requirement  in  these  cases  has 
the  effect  that  what  one  person  is  allowed  to  do,  another  per- 
son may  be  forbidden,  the  principle  of  equality  in  its  simplest 
form  is  broken  through,  and  the  question  is  whether  some 
higher  form  of  equality  is  not  recognised  in  the  justice  of  the 
discrimination,  or  whether  the  inequality  is  not  a  necessary 
condition  of  the  public  welfare. 

Licenses  based  on  discrimination  of  circumstances  or  persons 
occur  as  follows : 

1.  Where  promiscuous  or  indiscriminate  freedom  to  act  will 
disturb  public  order  or  interfere  with  the  common  use  of 
public  i)laces.  Parades  oi'  jn-ocessions  may  impede  public 
traffic,  and  if  a  number  are  held  at  fhe  same  time,  serious  con- 
flicts may  result.  Fi-uit-stands  and  cab-stantls  cannot  be  in- 
definitely mulfiplicd,  fuid  llic  number  of  street  I'ailroads  on 
the  streets  or  of  fen-ics  plying  on  the  river  between  two  high- 
ways must  be  liniil<(l.  To  some  extent  the  limitation  may  come 
about  n;i1ur;illy,  without  i-egulation,  but  what  all  eannol  do 
e(|u;illy,  no  om'  cnii  d.-iini  ;is  ;i  mailer  of  absolute  right.  Here, 
then,  tlie  ni.iiiilenance  of  ordei"  in  public  places  requires  a 
I'esf rietiou  of  I'i'jbis  to  limiled  nunibei's  oi*  st;if(Ml  timi^s  oi- 
bolh.- 

■_'.   ^VIll•|•(•   nil    occupation    is   offensive   lo    llie   senses   and    oh- 

1  See  §8  37,  38,  supra.  •■:  Sec  §§  173,  \7\,  supra. 

664 


§640  CASES  CALLING  1"UK    DJttCl:l.MJAAT10N.  (565 

noxious  to  comfort,  it  may  be  restricted  with  regard  t(j  locality, 
and  some  assurance  may  be  required  that  it  will  be  conducted 
with  the  greatest  possible  care  and  regard  to  the  surround- 
ing neighborhood.  The  same  is  true,  in  an  even  stronger  de- 
gree, of  places  and  establishments  which,  unless  surrounded 
with  considerable  safeguards-,  endanger  public  safety  and 
health.  This  applies  to  the  scavenger  business,  chemical  fac- 
tories, packing  and  rendering  establishments,  slaughterhouses, 
markets,  gunpowder  .factories,  livery  stables,  and  other  places 
of  a  like  character. 

3.  In  some  occupations  it  is  the  lack  of  personal  qualifica- 
tion and  competence  which  causes  the  public  danger  and  needs 
to  be  guarded  against.  The  medical  profession  is  the  principal 
one  within  this  category ;  but  the  occupation  of  dentist,  phar- 
macist, railroad  engineer,  pilot,  architect,  plumber,  and  even 
barber,  have  been  held  to  be  subject  to  the  same  principle. 

4.  Finally  a  number  of  occupations  are  held  to  be  dangerous 
to  peace,  order  and  morality ;  so  above  all  that  of  selling  liquor, 
but  also  selling  weapons,  the  keeping  of  places  of  public  amuse- 
ment, the  business  of  the  pawnbroker,  junkdealer,  etc.  The 
business  of  auctioneer  and  of  the  itinerant  merchant  may  be 
mentioned  in  this  connection  as  presenting  peculiar  facilities 
for  fraud  and  for  evasion  of  legal  regulations.  The  public 
danger  can  here  be  guarded  against  by  regulations  regarding 
the  conduct  of  the  business,  or  by  seeing  that  the  business  does 
not  get  into  the  hands  of  persons  of  questionable  character, 
or  of  notoriously  bad  reputation. 

In  all  the  four  cases  the  pursuit  of  certain  occupations  can- 
not be  claimed  as  a  matter  of  constitutional  right  as  being  part 
of  the  liberty  secured  by  the  fundamental  law,  for  the  reason 
that  these  occupations  in  a  special  manner  affect  and  endanger 
peace,  order,  and  security,  according  to  principles  before  dis- 
cussed.^ 

§  640.  Right  to  equality  notwithstanding  liability  to  entire 
prohibition.— It  has  been  asserted  that  where  an  avocation  can- 
not be  pursued  as  a  matter  of  common  right,  the  general  prin- 
ciple of  equality  has  no  application.  Upon  this  theory  it  has 
been  held  that  the  right  to  sell  liquor  may  be  confined  to  male 
persons.-*  While  the  restriction  of  liquor  licenses  to  men  may 
be  justified  on  other  grounds,  it  is  conceived  that  the  broad 

3  See  §§  492-494,  supra.  -*  Blair  v.  Kilpatrick,  40  Ind.  312. 


566  SPECIAL  PRIVILEGES.  ^  041 

denial  of  the  principle  of  equality  to  the  riyht  to  eariy  on  a 
business  subject  to  license  is  not  in  accordance  Avith  sound 
constitutional  doctrine.  Necessary  restriction  cannot  sanction 
or  cover  arbitrary  discrimination.  Where  a  right  is  conceded 
under  conditions  and  qualifications,  there  is  no  reason  why  an 
equal  chance  should  not  be  given  to  all  capable  of  comply- 
ing with  such  conditions,  and  why  such  qualifications  shoukl 
not  be  required  to  have  a  bearing  upon  the  evils  or  dangers 
justifying  the  restriction. 

It  is  necessary,  therefore,  to  inquire  in  how  far  the  prin- 
ciple of  equality  is  or  can  be  maintained  under  a  policy  of  re- 
striction. An  obvious  difference  exists  between  the  first  two 
classes  mentioned  which  rest  on  objective  conditions,  and  the 
last  two  classes  which  involve  subjective^  or  personal  qualifi- 
cations. 
RESTRICTIONS  BASED  OX   OBJECTIVE   CONDITIONS.     §§  G41-645. 

§  641.     Regulations   superseding   administrative   discretion. 

— Where  the  restriction  is  calle^l  for  by  ol)jectiv('  ('onditii)ns 
it  is  possible  to  eliminate  the  personal  factor  entirely.  Regu- 
lations may  be  prescribed  which,  though  strict  and  onerous, 
may  be  complied  with  by  any  one  Mdio  wishes  to  secure  the 
right,  or  if  numbers  are  necessarily  restricted,  the  right  may 
be  made  to  depend  on  priority  of  ap{)licati()n.  Restrictions  on 
the  basis  of  locality  may  be  enforced  without  creating  special 
])rivileges,  where  within  llic  locality  sufificient  accommodation 
can  be  had  for  all  applicants,  so  in  rerpiiring  fresh  meat  to  b(^ 
sold  at  th(^  public  market,-''  or  in  ])i'ohibiting  slaughter  houses 
within  city  limits,  or  in  specified  ])oi'tions  thereof.^'  With  re- 
gard to  the  I'emoval  of  gnrbage,  the  Supreme  (^)urt  of  Kansas 
has  laid  down  what  seems  to  be  the  sound  principle,  that  thi> 
regulations  must  leave  a  way  open  to  every  person  who  will 
comply  with  the  )(M|nii-(»ments  of  the  ordinance,  to  engage  in 
thr  husiness;"  bnt  in  an  early  case  in  Massachusetts  sneli  a 
limitation  was  not  regarded  as  necessary.^ 

8St.  Louis  V.  Webbor,  44  Mo,  .'547;  "Matter   of    Lowe,    51    Knii.    Z.'j?, 

State  V.  Sarradat,  40  Lh.  Ami.  700,  27  L.  R.  A.  .545. 

24  T>.  R.  A.  r)84;   Ex  jiartc  liyrd,  S4  «  Re   Vjindine,    (i    Pick.    187,    1S2S. 

Ala.    17,  4   S...   .'?!)7,   r,   Am.   St.    Hep.  See   State    v.    Tlill,    126    N.   C.    113!), 

?,2H.  r)0  L.  R.  A.  47.S,  where  an  ordinance 

"Belling    v.    Evansville,    144     Ind.  ii'(|iiiririfr     a     liciMisc    for    sc^avenger 

644,  42  N.  E.  621  ;  Cronin  v.  Pe()[)Ii',  work    wliicli    pri'vcntcd    owners    from 

82  N.  Y.  318.  removing     refuse     from     tlicir     owu 


§  642  UNREGULATED   DISCHKTIOX.  667 

^642.  License  a  ministerial  or  a  judicial  act.— 11'  the  law 
prescribes  exhaustively  the  conditions  under  which  the  act  or 
thing  is  permissible,  either  no  license  is  required,  or  the  license 
is  in  the  nature  of  a  certificate  the  issue  of  which  is  a  ministerial 
act.  The  license  asJ3umes  a  different  character  where  the  law 
does  not  specify  the  conditions  undin-  which  the  act  or  matter 
is  to  be  lawful,  but  requires  a  determination  to  be  made  from 
case  to  case  according  to  the  judgment  of  some  designated 
authority.  The  law  delegating  such  discretion  may  be  a 
statute  or  an  ordinance,  the  authority  designated  may  be  the 
legislative  body  of  a  municipality  or  some  administrative  officer 
or  board. 

i;  643.  Unregulated  discretion:  cases  in  which  held  uncon- 
stitutional.—There  are  authorities  which  hold  that  an  ordinance 
regulating  noxious  establishments  or  the  use  of  public  places 
cannot  lawfully  be  framed  in  such  a  manner  as  to  make  the 
right  in  each  case  dependent  upon  a  permit  without  specify- 
ing the  conditions  under  which  the  permit  is  to  be  issued  or 
withheld.  It  has  thus  been  held  that  absolute  discretion  cannot 
be  given  to  boards  of  health  to  grant  or  withhold  permission 
to  conduct  laundries,*^  or  to  the  iMayor  to  revoke  permits  for 
keeping  steam  engines,^'*  that  the  right  to  erect  buildings," 
to  run  a  hackney  coach,^-  to  store  inllammable  oil,^^  or  pressed 
hay,^'*  to  establish  a  slaughter  house,^^  or  a  hospital,^^  or  a 
dairy,'"  or  a  laundry,!"*  cannot  be  made  to  depend  upon  the 
permission  granted  by  the  common  council,  still  less  upon  the 
permission  of  an  administrative  officer,'-'  without  further  regu- 
lation of  the  conditions  determining  the  grant  or  refusal  of  the 
license.  So,  with  regard  to  the  use  of  public  places,  an  or- 
dinance  was   declared   void,   which   required    for   j^arades   the 

premises  was  held  unreasouable  and  i*  Mayor  of  Hudsou  v.   Thornc,   7 

void   on   account   of  its  special  pro-  Paige   (N.  Y.),  261. 

visions.  i^'  Bartliet  v.  New  Orleans,  24  Fed. 

9  Re  Woh  Lee,  26  Fed.  471.  Rep.  563. 

1"  Baltimore    v.    Radecke,    49    I\Id.  i*"- Bessonies     v.    Indianapolis,     71 

217.  Ind.  189. 

11  Newton    v.    Belger,    143    Mass.  i"  State   v.    Maimer,   43   La.   Ann. 
598,  10  N.  E.  464;  State  v.  Tenant,  496,  0  Sou.  Rep.  480. 

no  N.  C.  609,  15  L.  R.  A.  423.  '^  Vick  Wo  v.  Hopkins,  118  U.  S. 

12  State  v.  Fiske,  9  R.  L  94.  356. 

13  Richmond    v.    Dudley,    129  Tnd.          i'-' Sioux    Falls   v.   Kirby,   6   S.   D. 
112,  13  L.  R.  A.  587.  62,  25  L.  R.  A.  621. 


668  SPECIAL  PRIVILEGES.  §  643 

consent  of  the  mayor;  it  was  admitted  that  it  might  be 
proper  to  confine  parades  to  certain  streets  or  certain  hours, 
or  require  previous  notice  to  the  police;  but  it  Avas  held  that 
general  conditions  must  be  fixed  by  bye-laws,  and  that  to 
commit  an  arbitrary  power  to  the  ]\Iayor  was  unreasonable.2'> 
In  Illinois  an  ordinance  was  held  to  be  invalid  which  pro- 
Iiibited  parades,  processions  and  open  air  meetings  without 
a  permit  from  the  police  department,  such  permit  to  designate 
the  route  to  be  followed  and  to  issue  without  fee.-^  The  de- 
cision went  partly  on  the  ground  that  the  ordinance  was  an 
unauthorized  delegation  of  power  by  the  common  council  to 
the  police  department,  partly  that  it  gave  the  authorities  a 
power  to  discriminate.  In  j\Iichigan  an  ordinance  making  all 
processions  with  music  illegal  without  the  consent  of  the 
mayor  and  council,  and  requiring  those  authorised  to  conform 
to  the  directions  of  the  mayor  and  chief  of  police,  under  heavy 
penalties,  was  held  to  be  invalid  because  it  left  the  matter 
to  an  irregular  official  discretion,  when,  if  regulated  at  all,  it 
must  be  regulated  by  permanent  legal  provisions  operating 
generally  and  impartially.- ^  A  similar  decision  w^as  made  in 
Wisconsin,23  where,  however,  the  ordinance  discriminated  in 
favor  of  certain  kinds  of  processions. 

The  theory  upon  which  these  decisions  proceed  is  (Mther 
lluit  a  power  of  regulation  delegated  by  the  legislature  must 
l)e  exercised  by  the  body  in  which  it  is  vested  and  may  not 
l)e  further  delegated  by  it,  or  that  an  ordinance  which  leaves 
everything  to  the  circumstances  of  the  individual  case  is  in 
reality  no  reguhiliou  and  unreasonable  by  virtue  of  its  loose- 
ness,2-i  or  that  the  micontrolled  discretion  gives  opportunity 
for  arbitrary  discrimination  and  thus  violates  the  i)rinciple 
of  the  equal  protection  of  the  laws.-^    Where  the  statute  vests 

-•»  Anderson      v.      Wellington,      40  been     liclU     unreasniiiiblc     iiiul     void 

K;m.  173,  2  L.  R.  A.  110.  that  every  person  who  shall   play  a 

•Ji  Chicago  V.  Trotter,  13G  Til.  4.30.  noisy   instrnnient   or  sing   or  preach 

'I'lif  soundness  of  this  decision  ninst  in    any    street    without    a    previous 

III'   doubted,   since   the   issue   of    the  written  license  from  the  Mayor  shall 

l>crmit    might    well    have    been    re-  be  fined,   etc.,  as  it    woidd   enable  a 

garded  as  a  ministerial  act.  Mayor  In  legalise  a  nuisance  or  pro- 

^•■i  Matter  of  Frazee,  03  Mich.  300.  hibit    a   lawful  act  which   was  not  a 

•-■•■'■  State  e.\   rel.   (Jiirrabad   v.    Der-  nuisance,  Munro  v.  Watson,  51  J.  P. 

itig,  84  Wis.  .-JSG.  060,  57  L.  T.  366. 

•■:4  NewtoiB     v.    Bcjger,    143    Mass.  ^r,  Yick  Wo  v.  Hopkins,  1 18   U.  S. 

598.     So  in   England  a  bye-law   has  356. 


§  644  UNKEGULATEI)   DISCRKTIOX.  (jtj9 

the  discretion  directly  in  the  administrative  authority,  there 
may  also  be  an  objection  on  the  ground  that  the  legislature 
has  abdicated  an  authority  which  under  the  constitution  it 
must  exercise  itself.-*^ 

§644.  Unregulated  discretion ;  cases  in  which  sustained.— 
There  are,  however,  also  decisions  of  a  contrary  tenor.  Thus 
ordinances  have  been  sustained,  which  without  further  speei- 
lication  of  conditions  reciuire  a  permit  for  the  erection  of 
wooden  buildings  within  the  fire  limits,-'^  or  for  the  keeping  of 
swine  in  a  town,^*  or  for  the  establishment  of  a  dairy  stabh; 
in  the  city  limits,^''*  or  for  the  beating  of  drums  in  the  streets,"" 
or  for  the  moving  of  a  building  through  the  streets,^i  or  even 
for  the  erection  of  any  building,  without  further  regulation.32 
In  South  Carolina  the  Supreme  Court  declined  to  consider  in 
a  mandamus  proceeding  the  constitutionality  of  a  law  giving 
the  state  board  of  agriculture  power  to  grant  or  refuse  licenses 
for  the  mining  of  phosphate,  but  intimated  that  the  Four- 
teenth Amendment  did  not  apply  to  the  case.^'^  The  Supreme 
Court  of  Massachusetts  has  held  that  the  legislature  may 
permit  the  use  of  public  places  for  purposes  of  parades  or 
public  speaking  upon  such  terms  as  it  pleases,  and  may  leave 
the  permit  to  the  discretion  of  the  mayor  or  board  of  police; 
and  this  view  has  been  confirmed  by  the  United  States  Supreme 
Court.  3^ 

The  decisions  sustaining  discretionary  power  without  fur- 
ther regulation  are  based  partly  upon  the  free  exercise  of 
proprietary  control,  partly  upon  the  theory  that  a  power  to 
prohibit  includes  the  power  to  permit  upon  any  terms  deemed 
expedient,  "For  the  legislature  absolutely  or  conditionally  to 


-'■'  Noel  V.  People,  187  111.  587,  .58  ao  Ee   Flaherty,    105   Cal.    558,    J7 

N.  E.  616.  L.  R.  A.  529. 

-"  Hine   v.   New   Haven,   40   Conn.  3i  Wilson  v.   Eureka  City,   173  U. 

478;    Ex   parte   Fiske,    72   Cal.   125,  S,  32. 

(not    presumed    that   power   will   be  ^2  Commissioners     of     Easton     v. 

exercised  wantonly;  impossible  to  es-  Covey,  74  Md.  262. 

tablish  a  general  rule  beforehand)  ;  '-^'-^  Port  Royal   Mining   Co.   v.   ITa- 

McCloskey   v.   Kreling,   76   Cal.   511.  good,  30  S.  C.  519,  3  L.  R.  A.  841. 

-s  Quincy   v.    Kennard,    151    Mass.  s*  Commonwealth  v.   Plaisted,   148 

563,  24  N.  E.  860.  Mass.    375,    2   L.   E.   A.    142;    Coni- 

-9  St.    Louis    V.    Fischer,    167    Mo.  monwealth  v.  Davis,  162  Mass.  510; 

654,  67  S.  W.  872,  Davis    v.    Massachusetts,    167    U.    R. 

43. 


(i7i)  SPECIAL  PRIVILEGES.  §  644 

forbid  public  speaking  in  a  highway  or  public  park  is  no  more 
an  infringement  of  the  rights  of  the  member  of  the  public  than 
for  the  owner  of  a  private  house  to  forbid  it  in  his  house. 
"When  no  proprietary  right  interferes  the  legislature  may  end 
the  right  of  the  public  to  enter  upon  the  public  place  by 
putting  an  end  to  the  dedication  to  public  uses.  So  it  may 
take  the  lesser  step  of  limiting  the  public  use  to  certain  pur- 
poses. "^^  "The  right  to  absolutely  exclude  all  right  to  use 
necessarily  includes  the  authority  to  determine  under  what 
circumstances  such  use  may  be  availed  of,  as  the  greater  powei- 
contains  the  lesser.  "3c  Neither  of  the  two  theories  justifies  a 
power  of  arbitrary  discrimination  where  a  matter  is  simply 
subject  to  regulation  and  not  to  prohibition,  and  this  is  recog- 
nised by  the  Supreme  Court  of  ^Massachusetts.^" 

So  also  the  Supreme  Court  of  jMichigan,  which  in  the  Frazee 
case,  long  regarded  as  the  leading  case  upon  the  point  now 
under  discussion,  had  held  an  unregulated  discretion  in  the 
mayor  to  allow  or  disallow  parades  to  be  invalid,  upholds  a  free 
discretion  as  to  permitting  or  forbidding  addresses  on  public 
places,=^s  distinguishing  the  former  case  as  one  concerning  the 
(luestion,  "who  may  travel  on  a  public  highway,"  while  the 
making  of  addresses  in  i)ublic  places  may  be  prohibited. 

The  distinction  thus  emphasized  between  things  Avhich  are 
subject  to  prohibition,  and  things  which  are  subject  to  regula- 
tion, seems  plausible,  and  may  serve  to  reconcile  otherwise 
conflicting  decisions.^^  Yet  even  as  applied  to  the  former, 
the  doctrine  propounded  in  .Massachusetts  and  Califo)-niii 
should,  if  possible,  be  taken  to  mean  that  the  unregulated 
discretion  must  be  exercised  judicially,  .md,  if  understood  as 
sanctioning  an  arbitrary  or  uncontrollable  discretion,  should 
be  rejected.  There  can  bi"  no  donbl  Ihal  it  is  desirable  to  pro- 
tect the  principle  of  equality  wherever  it  is  possible  to  do  so. 
To  deny  the  application  of  the  ])rinciple  to  the  use  of  public 
places  for  ])ublic  s])eaking,  or  to  acts  which  may  be  altogether 
l»rohibited,  is  not  only  unnecessary,  l)ut  s(>enis  contrary  to  the 
si»ii-it  of  our  institutions,  and  it  needs  no  argument  to  show 

a.'.  Coniiiionwwiltli     v.     Davis,     102  '^sT-dvo     v.     .Tnd^ro    of    Ret'onlor's 

Mass.  niO.  (Ji)urt      ol'      iJolmit      (I'lu-laii),     1'JS 

:>»  Duvis  V.  Massiicliusettfl,   167  U.  Mich.  545,  55  L.  i^  A.  (518. 

S.  ,i:i.  •■"•Sec  irarrisuii   \.   r<'u).lc,   lol    111. 

■17  Newton    v.    Relf;er,     lUi     Mjihh.  App.  'JL'I,  as  to  liceriHcs  for  linwliny 

598.  alleys. 


!5  (J45  CONSENT  OF  PEOPLE  OF  LOCALITY.  fJ71 

that  ail  uncontrolied  i)0wc'r  to  grant  or  withliold  privilt^gcs 
which  might  be  accorded  on  equal  terms,  is  open  to  tlie  great- 
est abuses. 

§  645.  Vote  or  consent  of  people  of  locality.— In  some  cases 
the  discretion  to  allow  or  forbid  the  location  of  noxious  estab- 
lishments, which  is  withheld  from  the  administrative  authori- 
ties, is  committed  to  a  vote  of  the  people  of  the  locality  con- 
cerned. This  has  been  upheld  in  Illinois  with  reference  to 
places  for  the  sale  of  liquor  and  with  regard  to  livery  stables,'*" 
and  has  been  declared  invalid  in  California  with  regard  to 
public  laundries,-*^  and  in  Missouri  with  regard  to  livery 
stables.-*-  But  in  California  and  ^Missouri  the  qualified  pro- 
hibition extended  practically  throughout  the  city,  so  that  the 
vote  of  the  citizens  might  have  made  a  lawful  business  alto- 
gether impossible ;  in  Illinois  it  was  confined  to  residence 
streets. 

It  may  therefore  be  said  that  the  local  legislative  body  may 
leave  the  discretion  to  allow  or  forbid  to  the  people  of  the 
locality  only  where  and  in  so  far  as  it  has  the  power  to 
prohibit  it  altogether.  The  fact  that  it  is  the  people  who  decide 
is  accepted  as  a  sufficient  answer  to  the  objection  that  this 
method  involves  both  delegation  of  power  and  uncontrolled 
discretion. 

PEOFESSIONAL  QUALIFICATION.     §§646-650. 

§  646.  Methods  of  ascertaining  fitness.— Where  an  occupa- 
tion demands  for  its  safe  exercise  competent  knowledge,  the 
right  to  pursue  it  should  be  granted  equally  to  all  who  furnish 
satisfactory  proof  of  such  knowledge.  There  are  two  prin- 
cipal methods  of  ascertaining  fitness:  the  requirement  of  a 
diploma  of  an  institution  giving  the  requisite  instruction, 
and  an  examination  by  public  authority.  Not  infrequently 
the  fact  of  having  practiced  the  occui)ation  in  question  for 
a  stated  number  of  years  is  accepted  as  sufficient  evidence  of 
qualification,  and  still  more  commonly  the  requirement  oper- 
ates prospectively  only  upon  persons  not  already  engaged  in 
the  occupation  at  the  time  the  requirement  is  made.-*-"^    Assum- 

•»'>  Swift    V.    People,    1G2    111.    534;  -J^  St.    Louis    v.    Ru.ssell,    116    Mo. 

Chicago    V.    Stratton,    162    111.    404,  248,  22  S.  W.  470. 

44  N.  E.  853.  *^  See  below  §  684  on  question  of 

41  Ex  parte  Sing  Lee,  96  Cal.  354.  classification. 


672  SPECIAL  PRIVILEGES.  §  647 

ing  that  the  freedom  of  occupation  may  be  restricted  in  this 
manner,-*^  the  exaction  of  a  test  of  fitness  does  not  create  a 
special  privilege  or  viohite  the  principle  of  the  equal  pro- 
tection of  the  laws,  provided  the  qualification  is  obtainable  by 
reasonable  effort.^^ 

§  647.  Discriminations  in  tests  of  fitness.— Unjust  discrim- 
inations in  the  tests  of  fitness  may,  liowever,  violate  the  prin- 
ciple of  equality.  It  is  therefore  important  to  note  that  no 
statute  makes  the  right  to  practice  medicine  dependent  upon 
the  recognition  of  some  particular  school  of  medicine.-**'  Care 
is  also  generally  taken  to  give  the  principal  schools  (honieo- 
l)athie  and  allopathic)  representation  upon  the  examining 
l)oard  or  boards ;  but  it  was  held  that  the  exclusion  of  eclectic 
examiners  is  not  in  itself  discrimination,  unless  it  can  be  shown 
that  applications  for  admission  are  improperly  rejected.-*" 

In  Kentucky  it  was  said:  "In  a  case  where  it  was  clear 
from  the  evidence  that  a  discrimination  had  been  made  against 
a  system  of  medicine  we  should  not  hesitate  to  hold  that  the 
board  had  exceeded  its  power.  "-*^  From  the  necessity  of  the 
case,  much  must  be  left  to  the  discretion  of  the  examining 
or  licensing  authorities,  not  only  in  determining  the  qualifica- 
tion of  the  applicant,  but  also  in  determining  what  is  a  n>j)n- 
table  institution  or  institution  in  good  standing  for  the  pur- 
pose of  recognising  its  diploma;-"^  administrative  action  is  here 
due  process  of  law,  and  where  an  appeal  is  granted,  it  may 
lie  to  other  administrative  or  executive  authorities;^"  but 
since  a  properly  qualified  person  ought  to  he  entitled  to  ad- 
mission to  practice  as  a  matter  of  right,  there  should  be  an 
ulliiiijitc  rcniiHly  in  the  eoni'ts  against  gross  pai'tiality  or  abuse 

•14  §§  492-497,  supra.  +«  See  §  113,  supra. 

4r.  Physicians,    Dent    v.    West    Vir-  '"Allopathic  Slate  Hoard  of  Aled- 

ginia,  129  U.  S.  114;  Ex  parte  Spin-  ical     Rxamincrs    v.     Fowler,    ilO    La. 

ney,    10   Nev.   323,    1875;    druf^gists,  Ann.  13.58,  24  South.  Rep.  809. 

State  V.  Forcier,  65  N.  H.  42;  plum-  <«  Nelson      v.      State      Board      of 

hers,   I'eople   v.   Warden,    144   N.   Y.  Health,    22    Ky.    T>avv    Reji.    438,    50 

529;    Singer    v.     Maryland,    72    iM.I.  L.    R.    A.    383.      See    also    Stale    v. 

-1()4;    State   v.   Gardner,    58   Oh.   St.  Gregory,  83  Mo.  123. 

.599,  51  N.  E.  136;  barbers.  State  v.  ••"State  ex  rel.  Coffey  v.  Chitten- 

Zeno,  79  Minn.  80,  48  L.  R.   A.  SS  ;  .lea   (Wis.),  88  X.  W.  587. 

iiursoHlioers,   iield  unconstitutional    in  r.o  r„   in   Ohio   to  governor  and   al- 

lllinolH    on    a    special    ground,    lies-  tornoy-genc-al,    Franrc    v.    State,    57 

Hctte  V.  People,  193  HI.  334,  62  N.  K.  Oh.  St.   1,  47  N.  K.  lotl. 
215,  .56  L.  R.  A.  558. 


§  648  SEPARATION  OF  I'OWKRS.  (i7;j 

of  discretion.'  Tn  accordance  with  this  vii'w  coiirls  liavi' 
afforded  relief  by  niandanms  where  the  l)oai-d  made  refjuire- 
ments  not  prescribed  by  the  statute,^  or  left  the  deteriiiination 
of  the  repiitability  of  a  school  to  a  foreif>n  body  or  n-fiisi'il 
to  recognise  a  diploma  after  having  recognised  .m  iiistitnlioii 
as  reputable.-' 

§  648.  Encroachment  upon  judicial  power.  — It  has  been  held 
in  Illinois  that  the  legislature  cannot  prescribe  conclusively 
the  qualifications  which  will  entitle  a  person  to  be  admitted  to 
the  practice  of  the  law,  since  the  constitutional  independence  of 
the  courts  requires  that  they  should  judge  for  tln'mselves 
whether  their  practitioners  are  competent  or  not;*  the  main 
contention  in  this  case  concerned  the  mutual  limitations  be- 
tween two  departments  of  the  government,  and  not  the  limita- 
tions upon  the  government  as  such  in  favor  of  the  liberty  of 
the  citizens;  for  the  power  to  regulate  the  right  to  practice 
law  was  not  questioned.  In  New  York  it  has  been  held  to  fail 
within  the  legislative  power.-"' 

§  649.  Delegation  of  legislative  power. — It  has  been  held 
in  Ohio  that  the  i-ight  to  act  as  a  steam  engineer  cannot  be 
made  to  depend  upon  a  license  to  be  granted  by  an  administra- 
tive officer  if  upon  examination  he  find  the  applicant  trust- 
w^orthy  and  competent,  subject  in  case  of  refusal  to  appeal  to 
a  higher  administrative  officer.^'  While  the  court  dwells  upon 
the  absence  of  rules  and  the  unlimited  discretion  of  the  officei-, 
it  seems  to  base  its  decision  upon  the  unconstitutionality  of 
delegation  of  legislative  power.  If  this  is  the  controlling  ele- 
ment, it  Avould  not  have  saved  the  statute  if  it  had  directed 
the  examiners  to  frame  rules  by  which  they  were  to  be  guided 
in  testing  applicants;  yet  the  power  to  frame  such  rules  is  not 
regarded  as  an  unconstitutional  delegation  of  legislative  power 
in  case  of  the  civil  service  laws,  and  some  rules  are  generally 
promulgated  by  medical  and  other  examining  boards.  It  is  a 
sound  constitutional  principle  that  if  the  right  to  i)ursue  an 

1  This   follows   from   the  principlo  •f  State  Board  of  Dental   Examin- 
nf  the  separation  of  powers;  a  con-      ers  v.  People,  123  111.  i227. 

elusive     determination    by     adminis-  *  Ee   Day,    181    111.    7^.    .14    N.    K. 

trative   authorities   satisties   the   due  646,  50  L.  R.  A.  510. 
process   required   by   the   Fourteenth  ^  In  Re  Cooper,  22  X.  Y.  67. 

Amendment.      Reetz     v.      Michigan,  "  Harmon  v.  State,  (i^  Oli.  St.  249, 

188  U.  S.  505.  (>4  N.  E.  117. 

2  State  V.  Lutz,  1 36  Mo.  633. 

43 


074  SPECIAL  PKIVILEGES.  §650 

occupation  can  be  made  to  depend  upon  a  test  of  qualification 
that  test  ought  to  be  defined  by  general  rules,  but  it  is  hardly 
necessary  that  every  detail  of  the  rules  should  emanate  from 
the  legislature  directly.  The  mere  requirement  of  trustworthi- 
ness and  competence  is  not  a  definition  of  a  test.  It  follows 
that  there  must  be  a  specification  of  the  course  of  study  which 
the  applicant  must  pursue,  or  of  branches  of  knoAvledge  with 
which  he  must  be  familiar.  A  test  Avhich  is  vague  and  unde- 
fined is  liable  to  abuse  and  oppression,  but  is  also  the  easiest 
if  liberally  administered,  and  it  is  interesting  to  note  that  the 
stricter  constitutional  principle  involves  stricter  and  therefore 
possibly  more  burdensome  requirements.  It  may  be  men- 
tioned that  the  practice  condemned  in  Ohio  is  sanctioned  by 
the  federal  legislation  regarding  the  licensing  of  captains' 
mates,  engineers  and  pilots." 

§  650.  Privileges  accompanying  professional  license.— A 
license  resting  upon  professional  (lualification  cannot  be  made 
the  basis  for  the  granting  of  privileges  which  have  no  connec- 
tion with  such  qualification.  Thus  it  is  plain  that  licensed 
plumbers  could  not  be  given  an  exclusive  right  to  sell  .toilet 
or  gas  fixtures.  Upon  a  somewlmt  similar  ground  it  has  been 
held  in  ^Minnesota  and  Illinois  that  registered  pharmacists 
cannot  be  given  the  sole  right  to  sell  patent  and  proprietary 
medicines.^  The  case  is,  hoAvever,  different  from  the  one  be- 
fore suggested,  in  that  the  sale  of  patent  medicines  may  be 
made  a  subject  of  police  regulation  and  might  be  confined  to 
persons  properly  qualified.  The  decisions  cited,  therefore,  rely 
maiidy  upon  the  absence  in  the  statutes  of  any  provision  for 
examination  or  analysis  of  the  patent  medicines  sold,  the  ]>har- 
inncist  being,  on  the  contrary,  expressly  exempted  from  lia- 
l)ility  for  theii-  unsoundness.  ;iii(i  lliey  hold  the  measure  unten- 
;il)le  ;is  ;i  polii-e  reguhiruin  hccjiuse  failing  to  give  adequate 
])rotection.'*  It  should,  howevei-,  he  observed  that  statutes 
requiring  professional  (|ualification  as  a  i-ule  do  not  prescribe 
special  rules  for  the  praetiee  of  lh(>  profession  or  business, 
iioi-  inerease  1lie  eonimon  law  liahilify  ("or  lack  of  skill,  so  that 
Itic   license  iiiipoiis  neitlKM-  sjieeial   (l;ily'"    nor  si->ecial   regnln- 

7  U.  S.  K.  St.  44.39-4442.  '"So   :i   pliysicijiii    is   not    ro()uirctl 

«  State  V.  Doiijildson.  41   Minn.  74,  to  render  protVssioniil  sorvieos.    Hnr- 

42   N,   W.   7S1  ;    Noel   v.    I'coi)lc,   1S7  ley  v.    IvIdin^ficM,    I.'iG    Ind.  41(i,  59 

III.  nm,  .-JS  N.  E.  (iir;.  N.  E.  10.58,  .-5.3  E.  K.  A.  IS.'j. 
0  §  149,  sitpra. 


§651  QUALIFICATION  OF  (II. \i;.\ii'i;i;.  tj75 

tiori ;  and  this  is  justiliabK',  since  the  requirement  of  a  license  is 
not  intended  as  a  privilege,  hut  as  a  common  restraint,  and  tin- 
law  may  regard  the  possession  of  the  re(iuired  (lualilicaticjn  as 
sufficient  guaranty  that  it  will  be  used  for  the  benefit  of  tin- 
|)ublic.  Upon  a  somcAvhat  similai-  j)rincii)lr  the  law  may  en- 
trust the  sale  of  liquors  to  druggists,  without  special  responsi- 
bilities which  could  not  be  met  by  other  persons  as  well.'' 

QUALIFECATION  OF  CHARACTER.     §§  651-653. 

§  651.  Administrative  determination. — In  some  occupations 
the  interests  of  safety,  health  or  morals  are  held  to  justify  the 
requirement  of  good  character,  so  that  this  qualification  does 
not  constitute  a  special  privilege.^-  The  liquor  business  is 
typical  of  this  class,  but  the  requirement  is  also  made  with 
regard  to  the  practice  of  medicine  and  law,^'^  and  in  European 
countries  is  made  to  apply  to  teachers,  dancing  masters,  keep- 
ers of  bathing  establishments,  pawnbrokers,'^  etc.  The  deter- 
mination of  character  does  not  admit  of  equally  objective  tests 
as  that  of  knowledge,  and  the  statute  can  indicate  the  quali- 
lication  hardly  otherwise  than  by  speaking  of  suitable  persons 
or  persons  of  good  character,  leaving  the  determination  in 
individual  cases  to  the  judgment  of  licensing  authorities. 
Their  discretion  under  such  statutes,  while  a  judicial  one,  is 
not  easily  controllable,  and  it  has  been  held  in  Michigan  that 
all  disqualifications  debarring  from  the  right  to  engage  in  a 
lawful  business  must  be  specific,  and  that  the  charge  of  bad 
character  is  so  vague  that  the  applicant  cannot  meet  it.'''  The 
same  court,  however,  in  a  later  case,'^  held  that  the  suitability 
of  a  place  for  the  sale  of  liquor  may  be  left  to  the  discre- 
tion of  the  municipal  authorities,  and  intimated  that  the  ques- 
tion of  fitness  of  the  person  might  be  delegated  in  like  man- 
ner. This  decision  seems  in  effect  to  overrule  Robison  v. 
Miner  and  was  dissented  from  by  two  of  the  judges  of  the 

11  Commonwealth  v.  Fowlor,  96  admits  that  the  Icgishitiiro  may  cro- 
Ky.  166.  ate  <lisqualificatious  debarring  from 

12  Re  Ruth,  32  la.  250;  Common-  the  practice  of  the  law,  based  on 
\vealth  V.  Blackington,  24  Pick.  352.  character;  Re  Day,  181  111.  73. 

So  as  to  l)ookmaking  licenses:    State  i*  35  and  36  Vict.  ch.  93. 

V.  Thompson,  160  Mo.  333,  54  L.  R.  i-"-  Robison  v.  Miner,  68  Mich.  549. 

A.  950.  If' Sherlock  v.  Stuart,  96  Mich.  193. 

13  The  Supreme  Court  of  Illinois 


67(3  SPECIAL  PEIVILEGES.  §  652 

court.  The  doctrine  of  Robison  v.  ^Miner  may  perhaps  be 
reconciled  with  the  practice  of  legislation  by  holding  that  while 
the  statute  may  speak  simply  of  good  moral  character,  the  ad- 
ministrative board  should  base  its  refusal  of  a  license  upon 
specific  facts.  As  a  matter  of  fact,  proof  of  good  character 
is  generally  a  very  perfunctory  matter,  and  a  license  will 
hardly  be  refused  unless  the  unfitness  is  gross  and  manifest. 
And  while  it  is  not  uncommonly  said  that  the  fair  and  honest 
discretion  of  the  licensing  authorities  will  be  respected  by  the 
courts,  the  cases  in  which  after  rejection  of  the  application  for 
a  license  mandamus  was  (lenied,  uniformly  show  that  there 
was  ample  legal  ground,  supported  by  sufficient  evidence,  for 
the  refusal.^'  "Where  the  application  of  a  fit  person  was 
rejected,  it  will  appear  upon  examination  of  the  facts  of  the 
ease  that  the  law  allowed  other  grounds  for  refusing  the 
license^^^  and  that  the  rejection  was  justified  by  one  of  these 
grounds.  Under  the  laws  of  New  York,  authorisation  for  the 
establishment  of  savings  banks  and  trust  companies  is  granted 
only  upon  ascertaining  that  the  general  fitness  of  the  organis- 
ers for  the  discharge  of  the  duties  ajDpertaining  to  the  trust  is 
such  as  to  command  the  confidence  of  the  community.^ '^  It  is 
very  clear  that  specific  proof  of  facts  showing  qualification  is 
here  out  of  the  question. 

§  652.  Substitution  of  ministerial  function.  -The  require- 
ment of  good  character  is  generally  recognised  to  he  of  little 
value  in  its  practical  operation,  and  there  is,  therefore,  a 
tendency  to  substitute  for  it  definite  disqualifications  and  safe- 
guards. So  in  the  matter  of  the  liquor  business,  the  law,  by 
provisions  for  bonds  and  sureties  and  high  license  fees,  by 
restrictions  as  to  location  and  as  to  the  conduct  of  the  busi- 
ness, and  by  the  exclusion  of  per.sons  who  have  been  convicted 
of  a  violation  of  the  laws  or  who  have  forfeited  previous 
licenses  by  misconduct  or  ])rejich  of  condition,  can  accomplish 
as  much  ns  by  a  system  of  personal  selection  willi  its  inevi- 
table concomitants  of  favoritism  ;ni<l  risk  of  corruption.  Not- 
withstnnding   this   tendency,    the    constitutionality    of   :i(liiiin- 

iTRntters    v.    Dnmiinfj,    49    Conn.  ih  T?nu<lonhusch's  Petition,  120  Pa. 

470;     Rpnd'H    Appeal,     114    Pa.    St.  St.  3'JS. 

4fi2;  State  v.  Cass  County  Commis-  i"  Banking  Law,  §  153. 
Bioners,  12  Neb.  54. 


j;  652  A1).MI.\18TKAT1\K   DlSCHKilUX.  (j77 

istrative  discretion  in  the  niatlcf  oj'  ^i-;iiitiii<,^  or  n-l'iisinii-  liciiior 
licenses  is  generally  conceded. 

In  New  York,  where  the  sj'steni  of  discretionary  power  has 
been  abandoned  by  the  legislature  in  the  case  of  the  liquor  busi- 
ness, the  courts  strongly  sustain  it  on  itriiiciplc  Thus  a  char- 
ter provision  that  the  mayor  shall  have  authority  to  grant 
licenses  to  any  person  desiring  to  be  engaged  in  the  business 
of  auctioneer  was  construed  as  giving  him  a  discretion  which 
the  courts  would  not  control. 2'>  While  in  this  particular  busi- 
ness the  history  of  legislation  showed  that  a  discretionary 
power  was  intended  to  be  conferred,  the  court  went  so  far  as 
to  hold  that  the  word  license  by  irresistil)le  implication  in- 
volved a  discretion  to  refuse, — a  position  hardly  sustainable.^' 
The  court  expressed  itself  ver}-  decidedly  in  favor  of  admin- 
istrative discretion,  and  left  the  question  open,  how  an  abuse 
of  that  discretion  should  be  dealt  with.  The  opinion  says : 
"The  practice  of  nearly  a  century  in  this  state  has  taught  us 
that  there  is  little  to  fear  from  an  abuse  of  this  power,  for 
during  that  time  we  have  yet  to  learn  of  an  instance  where 
it  has  been  perverted  for  improper  purposes,  or  excited  public 
condemnation  or  disapproval.  In  the  government  of  the  affairs 
of  a  great  municipality  many  powers  must  necessarily  be  con- 
fided to  the  discretion  of  its  administrative  ofificers,  and  it  can 
he  productive  only  of  mischief  in  the  treatment  of  such  ques- 
tions to  substitute  the  discretion  of  strangers  to  the  power,  in 
place  of  that  of  the  officers  best  acquainted  with  the  necessitii's 
of  the  case,  and  to  whom  the  legislature  has  specially  confided 
their  exercise.  Whether  any  remedy  is  afforded  by  the  law 
for  an  abuse  of  such  discretion  it  is  not  now  necessary  to  in- 
quire, as  that  question  cannot  be  presented  on  an  application 
for  a  mandamus."  The  same  view  has  been  taken  of  licenses 
for  places  of  amusement. 22 

The  very  liberal  view  thus  expressed  by  the  Court  of  Appeals 

20  People  V.  Grant,  126  N.  Y.  473,  also     upholds     a    provision     of    the 

27  N.  E.  964.  Sanitary   Code  of  tlie  City   of   New 

-1  The  same  construction  is  placed  York  whereby  the  right  to  sell  milk 

on  the  term   license  in   North   Caro-  ii:.  made  to  depend  upon  a  permit  of 

lina.      Muller   v.   Buncombe   County,  the  Board  of  TTenlth  subject  to  the 

89  N.  C.  171.  conditions    thereof,    although     these 

--  Armstrong  v.  Murphy,  65  N.  Y.  conditions    are    not    defined    in    the 

Appl.  Div.  123;  72  N.  Y.  Suppl.  473.  Code;   however,   the  question   of  the 

The    New    York    Court    of    Appeals  validity  of  these  conditions  was  held 


678  '  SPECIAL  PETVILEGES.  §  653 

of  New  York  with  regard  to  administrative  discretion  are  in 
marked  contrast  to  the  sonnd  tendency  of  legislative  policy 
as  manifested  in  the  Liquor  Tax  Law  of  1896.  It  is  not,  how- 
ever, to  be  assumed  that  no  relief  Avould  be  afforded,  if  an 
arbitrary  exercise  of  discretion  could  be  shown. 

The  liquor  business  also  being  one  which  may  be  entirely 
prohibited,  the  issue  of  a  license  may  be  made  to  depend  upon 
the  consent  of  adjoining  or  neighboring  owners.-^ 

§  653.  Administrative  discretion  as  regards  business  intrin- 
sically harmless. — Where  a  business  is  intrinsically  harmless, 
the  law,  it  seems,  cannot  leave  it  to  the  discretion  of  admin- 
istrative officers  to  determine  what  persons  are  proper  to 
engage  in  it.  Such  a  power  was  therefore  held  unconstitu- 
tional with  regard  to  the  right  to  engage  in  a  "temporary  or 
transient  business.  "^^  The  act  did  not  indicate  in  what 
manner  the  temporary  or  transient  business  was  dangerous  or 
objectionable,  and  moreover  left  it  to  the  mayor  to  license 
such  persons  as  he  found  to  be  proper  persons  to  engage  in 
such  business.  This  was  held  to  confer  an  unrestrained  dis- 
cretion. In  Vermont  a  similar  statute  was  sustained  on  the 
ground  that  the  business,  in  the  judgment  of  the  legislature, 
offered  special  opportunities  for  fraud,  and  that  the  discretion 
was  intended  to  be  exercised  judicially,  although  its  fair  exer- 
cise was  not  controllable  by  mandamus.  With  reference  to  the 
case  of  State  v.  Conlon,  just  cited,  the  court  said:  "Had  the 
(yonnecticut  statute,  like  ours,  defined  'temporary  or  transient 
l)nsiness,'  granted  no  exclusive  privileges  to  any  persons  of 
the  class  of  transients,  or  referred  the  granting  of  licenses  to 
the  legal  discretion,  instead  of  the  mere  ca])ric(^  of  the  local 
authorities,  possibly  it  might  have  been  held  constitutional. "^^ 

JUDICIAL  CONTROL.     §§  654,  655. 

§  654.  Judicial  character  of  discretion.— Considering  the 
extent  to  wliidi  unregulated  discretion  oi"  local  or  adminis- 
tr;i1iv('   anUiofilics    in    llie   grant   or  refusal    of  discriminative 

not  to  l)c  iiropcrly   hcforo  tlic  court.  R.  86;  Swift  v.  People,    Kii:   III.  r^M. 

People  V.  Vjindecjirr,  175  N.  Y.  440,  Such  consent  may  then  give  a  right 

67    N.   E.   9L3.      The   opinion   dwells  to  the  issue  of  the  license.     Harrison 

u|)on  the  necessity  of  giving  to  the  v.  People,  105  111.  466,  63  N.  E.  191. 
police  jxiwcr  in  a  large  city  a  liberal  -•'  State  v.  Conlon,  65  Conn.  478. 

interpretation.  -f"  State  v.  Harrington,  68  Vt.  622, 

■--a  Crowley    v.   Christenson,    i:?7   TT.  M  L.  Tl.  A.  100. 


§  655  JUDICIAL  DISCRETION.  '  679 

licenses  is  iipiield  as  legal,  it  is  most  impoi-taiit  tiiat  tlic  dis- 
cretion shall  in  every  ease  be  a  judicial  and  not  an  arbitrary 
discretion.  Thus  an  early  law  writer  says:  "Where  any- 
thing is  left  to  any  person  to  he  done  according  to  his  discre- 
tion the  law  intends  it  must  be  done  with  a  sound  discretion 
and  according  to  laAv,  and  the  Court  of  King's  Bench  hath  a 
power  to  redress  things  that  are  otherwise  done  notwith- 
standing they  are  left  to  the  discretion  of  those  that  do 
them ;  and  thx)ugh  there  be  a  latitude  of  discretion  given  to 
one,  yet  he  is  circumscribed  that  what  he  does  be  necessary 
and  convenient,  without  which  no  liberty  can  defend  it. "^^ 
In  the  absence  of  statutory  specification,  the  nature  of  the  sub- 
ject-matter will  as  a  rule  sufficiently  indicate  the  considerations 
upon  which  the  discretion  is  to  be  exercised.  The  honest  exer- 
cise of  such  discretion  may  then  be  made  conclusive ;  for  where 
the  question  is  one  of  expediency,  and  the  determination  must 
be  based  upon  probabilities  rather  than  upon  facts,  adminis- 
trative action  constitutes  due  process  of  law,  and  a  review  of 
the  courts  is  not  a  matter  of  constitutional  right.-" 

Where  there  is  either  a  refusal  to  hear  an  application  for  a 
license,  or  a  violation  of  jurisdictional  or  procedural  limita- 
tions, the  common  law  writs  afford  relief.-*^ 

Where  there  is  a  hearing  in  due  form,  it  must  be  difficult  to 
prove  an  abuse  of  discretion,  but  grossly  arbitrary  and  oppres- 
sive action  would  constitute  official  misfeasance  in  office,  and 
redress  would  be  given  by  the  courts.-^  An  unregulated  ad- 
ministrative (and  probably  also  municipal)  discretion  is  there- 
fore not,  like  a  similar  legislative  discretion,  entirely  beyond 
judicial  control. 

§  655.  Federal  protection  against  arbitrary  discretion. — 
An  undefined  official  discretion  in  the  matter  of  granting 
licenses  against  the  arbitrary  exercise  of  which  the  state  should 
afford  no  relief,  might  be  held  to  violnte  the  Fourteenth 
Amendment.     While   the   United   States   Suprejne   Court   has 


26  Tomlins  Law  Dictionary  "Dis-  D.  C.  99;.  Gross'  License,  IGl  Pa, 
cretion."  344;   §§  20S-210,  supra. 

27  See  cases  cited  in  following  sec-  29  Rex  v.  Young  &  Pitts.  I  Rurr. 
tion;  also  Giles'  Case,  2  Stra.  881,  557;  Zanone  v.  Mount!  City,  103  111. 
Ex  parte  Yeager,  11  Gratt.  655.  552;    St.    Louis    v.    ^leyrose    Lamp 

28  United   States  v.   Douglass,  19  Mfg.  Co.,  139  Mo.  560. 


680  SPECIAL  PRIVILEGES.  §  655 

repeatedly  sustained  the  vesting  of  unregulated  discretion  in 
administrative  authorities  as  not  being  contrary  to  the  equal 
protection  of  the  laws,^*^  yet  these  decisions  were  rendered  in 
cases  in  which  it  was  not  charged  that  the  discretion  was  arbi- 
trarily or  oppressively  exercised.  The}^  are,  therefore,  quite 
compatible  with  the  assumption  that  every  administrative  dis- 
cretion must  by  construction  at  least  be  a  judicial  discretion 
to  be  reasonably  and  impartially  exercised.  The  case  of  Yick 
Wo  V.  Hopkins^i  shows  that  the  prohibition  of  the  Fourteenth 
Amendment  is  adequate  to  prevent  the  delegation  of  adminis- 
trative powers  calculated  to  produce  oppression  and  discrim- 
ination. In  the  case  of  Gundling  v.  Chicago,^-  the  Supreme 
Court  clearly  indicates  that  its  attitude  towards  unregulated 
administrative  powers  will  be  determined  by  the  spirit  in 
which  the  discretion  is  exercised.  "The  ordinance  in  question 
in  that  case  [Yick  Wo  v.  Hopkins]  was  held  to  be  illegal  and 
in  violation  of  the  Fourteenth  Amendment,  because,  with  refer- 
ence to  the  subject  upon  which  it  touched,  it  conferred  upon  the 
municipal  authorities  arbitrary  power,  at  their  will  and  with- 
out regard  to  discretion  in  the  legal  sense  of  the  term,  to  give  or 
withhold  consent  as  to  persons  or  phices  for  carrying  on  a 
laundry,  with  (without?)  reference  to  the  competency  of  the 
persons  applying  or  the  propriety  of  the  place  selected.  It 
was  also  held  that  there  was  a  clear  and  intentional  discrim- 
ination made  against  the  Chinese  in  the  operation  of  the  ordi- 
nance, which  discrimination  was  founded  upon  the  difference 
of  race  and  was  wholly  arbitrary  and  unjust.  It  appeared  that 
both  petitioners,  Avho  were  engaged  in  the  laundry  business, 
were  Chinese  and  had  complied  with  every  requisite  deemed 
by  the  law,  or  by  the  public  officers  charged  with  its  admin- 
istration, necessary  for  the  protection  of  neighboring  prop- 
erty from  fire  or  as  a  protection  against  injury  to  the  public 
hcnltli.  nnd  yot  the  supervisors,  for  no  reason  otluM"  than  dis- 
(•liiiiiiiMtioii  ;i gainst  the  Chinese,  refused  to  grant  the  licenses 
to  the  jx'titioners  and  to  some  200  other  Chinese  subjects,  while 
grnnting  them  to  eighty  people  who  -were  not  such  subjects 
;mi(I  were  woi'k'ing  under  precisely  flic  sniiic  conditions.  Such 
;iri  ordinaTicc  so  executed  was  lidd   void  li\-  Ibis  coui't.    *    *    * 

•■!"  Davis   V.    MiisHaclniHottH,    UIT    V.  •"•i  US   V.  S.  .■(.')(;. 

!-'..    4.T;    WilHoii    v.    lOiiroka   City,    17.".  ■'••;  177   U.  S.   183. 

U.    S.    .'!L' ;    (iiiiiiHiii^    \'.    <'liic;ij^(i,    177 

u.  s.  is:',. 


§656  MOiXOl'OLlHS.      •  yyi 

The  ordinance  in  question  here  does  not  j^raiit  to  tlie  mayor 
arbitrary  power  such  as  is  described  in  the  above  mentioned 
laundry  case.  *  *  *  In  the  case  at  bar  the  license  is  to  be 
issued  if  the  mayor  is  satisfied  that  the  person  applying  is  of 
good  character  and  reputation  and  a  suitable  person  to  be 
entrusted  with  the  sale  of  cigarettes,  provided  such  ai)i)licant 
will  file  a  bond,  as  stated  in  the  ordinance,  as  a  security  that 
he  will  faithfuU}^  observe  and  obey  the  laws  of  the  state  and 
the  ordinances  of  the  city  with  reference  to  cigarettes.  Th'* 
mayor  is  bound  to  grant  a  license  to  every  person  fulfilling 
these  conditions,  and  thus  the  fact  of  fitness  is  to  ])e  submitted 
to  the  judgment  of  the  officer,  and  it  calls  for  the  exercise  of 
a  discretion  of  a  judicial  nature  by  him." 

Under  this  decision  it  would  not  seem  to  make  any  difference 
whether  the  discretion  is  delegated  to  administrative  officers, 
or  reserved  to  be  exercised  from  ease  to  case  by  the  municipal 
legislative  authority. 

B.     MONOPOLIES.     §§  656-681. 

§  656.  Historical  remarks.  — The  customs  of  English  cities 
and  boroughs  and  of  companies  and  fellowships,  concerning 
trade  and  commerce,  resting  upon  prescription  or '  confirmed 
or  granted  by  charter,  were  to  a  great  extent  in  the  nature 
of  exclusive  privileges  or  monopolies.  Apart  from  these,  grants 
of  monopolies  by  ro^^al  letters  patent  became  common  during 
the  reign  of  Queen  Elizabeth,  especially  with  regard  to  the 
following  classes  of  rights:  rights  of  manufacture  Avhere  new 
processes  had  been  discovered  or  introduced ;  publishing 
rights;  rights  to  trade  in  newly  opened  channels  of  commerce; 
rights  affecting  the  royal  prerogative  (exportation  of  eoin 
and  foreign  exchange);  sole  rights  to  manufacture  <iiid  sell; 
or  sole  rights  to  license  certain  occupations  on  the  ground  that 
the  indiscriminate  exercise  of  the  right  or  occupation  would 
be  prejudicial  to  the  public  (keeping  inns,  peddlers,  making 
gold  or  silver,  or  playing  cards,  etc.). 

The  last  class  of  patents  was  used  as  a  source  of  royal  rev- 
enue and  to  bestow  bounties  upon  favorites,  and  became  the 
subject  of  much  complaint,  and  in  1601  most  of  these  grants 
were  revoked  by  the  Queen.  In  1603  an  exclusive  patent  for 
the  making  and  selling  of  playing  cards  was  declared  void  in 


682  SPECIAL  PKIVILEGES.  §  (j57 

the  case  of  Monopolies,^^  on  the  ground  that  it  was  against 
common  law  and  against  divers  acts  of  Parliament,  that  the 
Queen  Avas  deceived  in  her  grant,  and  that  she  could  not  sup- 
press the  making  of  cards  any  more  than  of  dice,  bowls,  balls, 
etc.,  which  are  works  of  labor  .and  art  though  they  serve  for 
pleasure,  recreation  and  pastime.  Royal  proclamations  an- 
nulling patents  and  forbidding  applications  for  them  were  is- 
sued also  in  1603  and  1610 ;  but  tlie  practice  of  granting  them 
apparently  continued,  for  parliament  petitioned  against  them 
in  1621.  In  1623'^^  the  statute  of  monopolies  was  enacted, 
which  declared  to  be  contrary  to  the  laws  of  the  realm  and 
utterly  void,  all  monopolies,  grants  and  licenses  for  sole  buy- 
ing, selling,  making,  working,  or  using  of  anything,  as  well 
as  all  grants  of  poAver  to  give  license  to  do'  anything  against 
the  tenor  of  any  law,  or  to  compound  for  penalties  or  for- 
feitures incurred, — saving,  however,  expressly  the  customs  and 
charters  of  cities,  boroughs  and  corporations,  and  letters  patent 
to  be  made  of  the  sole  working  or  making  of  new  manufac- 
tures to  the  true  and  first  inventor,  for  a  term  not  exceeding 
fourteen  years.  The  act  is  declaratory  of  the  common  law. 
and  establishes  authoritatively  a  limitation  upon  the  royal 
prerogative.  It  does  not  of  course  bind  Parliament  itself, 
Avhose  sanction  is  since  that  time  rc(iuired  for  all  exclusive 
rights  not  contained  in  the  reservations  of  the  statute.  Dur- 
ing the  reign  of  Charles  I  these  reservations  were  liberally 
construed,  and  monopolies  Avere  granted  Avhich  can  hardly  be 
brought  under  the  category  of  ncAV  manuracturcs  (so  the  ex- 
clusive right  of  publishing  AA'eekly  price  currents)  ;  but  the 
subject  appears  to  have  lost  gradually  its  character  as  a  public 
grievance,  and  the  Doolaration  of  Rights  of  1689  does  not  men- 
tion monopolies.^-'' 

§  657.     American  constitutional  provisions.  — Monopoli(>s  are 

"•■' Durey    v.    Allen,     11     Cuke    Kcji.  lii(li:i     * 'omiciny    \.    Siiinlys,     10    St. 

84.  'I'r.  :<71.      Uiil    ill  ,[;iiiiKiry,  t694,   the 

'<*  21  .Tm<;.  c.  .3.  House   of   Commons   resolved    "ili.il 

;>'•  Tiic      (iii(!stion      of      monopolies  all    the    subjects    of    England     lia\c 

was  agitated  toward   the  eml   of  the  ecjiial    rights    to    trade    to    the    Kast 

seventeenth     (century     in     coiiiiecl  ion  Indies    unless    prohihiteij    l)y    Act    of 

with  the  East    India   Company.     The  Parliament,"    and    the    first    Parlia- 

riival   prerogative  Id  grant    exclusive  nientary  charter  to  the  company  was 

tra<ling    licenses   <if   lliis    nature   was  granted    in    Kilt:'..      See   C.    I'.    Ilbert 

sustained    judiii.illy    in    168.5.      East  Goveminent  of  India,  p.  28. 


§  658  FRANCHISES.  6g3 

by  that  name  made  the  subject  of  constitutional  provisions  in 
but  few  states.  The  constitution  of  [Maryland  contains  a  clause 
that  monopolies  are  odious,  contrary  to  the  spirit  ol"  a  free 
government  and  tlie  principles  of  commerce,  and  ought  not  to 
be  suffered,^*^  and  in  North  Carolina,  Tennessee,  Arkansas  and 
Texas  the  prohibition  of  monopolies  is  coupled  with  that  of 
perpetuities.  The  declaration  of  ^lassachusetts  and  other 
states  that  there  is  no  other  title  to  particular  and  exclusive 
privileges  than  what  arises  from  the  consideration  of  services 
rendered  to  the  public,  would  practically  prevent  all  monop- 
olies inconsistent  witli  the  principle  of  equality,  and  the  pro- 
hibition contained  in  many  state  constitutions  of  local  or 
special  laws  granting  to  any  corporation  or  association  or 
an}^  individual  any  special  or  exclusive  privilege,  immunity  oi- 
franchise  whatever,  is  an  effectual  bar  at  least  to  all  monop- 
olies depending  upon  direct  and  special  legislative  grant. 

As  affected  by  the  general  principle  of  equality,  it  is  pro- 
posed to  consider  the  question  of  the  validity  of  monopolies 
with  reference  to  three  different  classes :  monopolies  of  neces- 
sity; monopolies  to  secure  the  benefit  of  original  production; 
and  monopolies  against  common  right. 

MONOPOLIES   OF   NECESSITY    (FRANCHISES).    §§058-662. 

§  658.  Right  to  occupy  highway.— The  exclusive  use  of  pub- 
lic property  or  of  delegated  public  power,  usually  designated 
as  a  franchise,  constitutes  a  legal  monopoly'.  In  so  far  as  a 
method  of  using  public  property  cannot  be  thrown  open  to 
the  public  indiscriminately,  such  a  monopoly  is  natural  and 
inevitable,  unless  the  state  or  municipality  assumes  the  man- 
agement or  ownership  of  the  enterprise  itself.  This  appears 
in  the  most  important  class  of  these  franchises:  the  right  to 
occupy  highways  with  tracks,  pipes,  poles  or  wires,  the  grant 
of  which  necessarily  involves  selection  and  limitation  of  iiuiii- 
l)ers.  The  same  is  true  of  the  right  to  span  public  rivers  l)y 
bridges.  The  inherent  power  of  the  legislature  to  grant  fran- 
chises of  this  nature  is  not  questioned,  and  it  is  not  constitu- 
tionally bound  to  secure  at  least  equality  of  chance  by  provid- 
ing for  bids  and  granting  the  franchise  to  the  highest  bidder. 
Where  the  legislature  is  prohibited  by  the  constitution  from 
passing  special  or  local  acts  granting  special  or  exclusive  priv- 

36  Art.  41  of  Declaration  of  Eights. 


684  SPECIAL  PKIVILEGES.  §  659 

ileges,  it  may  yet  by  general  act  delegate  to  municipal  corpora- 
tions power  to  grant  privileges  of  this  kind. 3"  That  a  munici- 
pality is  held  not  to  have  inherent  power  to  grant  street  fran- 
chises, is  no  argument  against  the  constitutionality  of  such 
monopolies,  but  simply  a  matter  of  limitation  of  delegated 
powers  in  the  hands  of  subordinate  authorities.^* 

§  659.  Right  of  condemnation  of  property.— The  case  of 
enterprises  involving  the  exercise  of  the  power  of  eminent  do- 
main is  somewhat  different.  It  is  possible  for  the  legislature 
to  delegate  the  exercise  of  this  power  generally.  New  York 
as  early  as  1848  granted  the  power  to  build  railroads,  and 
incidentally  to  condemn  property,  to  all  corporations  comply- 
ing with  the  statutory  conditions,  and  this  policy  was  followed 
in  other  states.  Such  a  provision  avoids  a  legal  monopoly. 
Ihxt  there  are  weighty  reasons  why  such  a  right  should  not  be 
allowed  to  be  exercised  indiscriminately,  and  Now  York  now 
again  requires  the  consent  of  its  railroad  commissioners  for 
the  buildnig  of  any  new  road.^" 

§  660.  Temporarily  exclusive  right  under  special  legislation. 
—  The  fact  that  certain  street  rights  cannot  be  enjoyed  in- 
discriminately by  all  does  not  necessarily  mean  that  they  can 
be  enjoyed  only  by  one.  The  grant  of  competing  franchises 
is  still  possible  to  a  limited  extent.  But  wherever  a  franchise 
is  granted  by  special  act,  it  is  necessarily  exclusive  of  others 
until  another  grant  is  made,  and  the  legislature,  whether  state 
oi-  local,  cannot  be  compelled  to  make  such  other  grant,  l^^very 
franchise  depending  ui)on  special  grant  is  therefore  for  tlic 
time  being  exclusive  of  further  competition.'"  This  is  vci-y 
different  from  a  monopoly  the  continuance  of  which  is  legally 
secured  either  permanently  or  for  a  specified  period  against 
(lerou-atory  grants  of  competing  IVaiicliises.  The  validity-  of 
monopolies  of  the  lattcM'  kind  \v\\\  ])<•  discnssed  presenli\'. 

V- 661.     Canals  and  river  improvements.— It   lias  nevei-  hreii 

•■•' Cliif-ago  Citj'   R.   Co.   v.   People,  Board    dl'     liailioad    ('oiiuiiissiomTs, 

73   111.   541 ;    Atchison   St.  R.   Co.   v.  160  N.  Y.  202,  54  N.  E.  697. 

MiHHouri  Pac.  R.  Co.,  31  Kan.  660.  "o  Raritan,  etc.,  R.  Co.  v.  Dolavvaro 

:iN  Davis  v.   ifayor.   14    \.   Y.  506;  ftc    Canal    Co.,    18    N.    J.    E(|.    .'■)46 ; 

KicholH  V.   Evan.svillc  Si.    i{.  Co.,   78  Indianapolis  Cable  Street   1\.   ('(..   v. 

hid.  L'61  ;   T>oniHvillo  City  Ry.  Co.   v.  Citizens  Street  R.  Co.,  1-7   Ind.  36!t, 

LoniHviiic.  S   Hnsli    (71    Ky.)   415.  8  T..  R.  A.  539. 

n"  Railroad    Ijaw,   §   59;    People  v. 


^  (i62  FRAXaUSES.  '  085 

contended  that  the  state  is  boiuul  to  keep  llie  inevitable  juonop- 
olies  connected  with  the  use  oi'  highways  in  its  own  hands, 
and  the  general  practice  has  been  to  leave  tiieir  exploitation 
to  private  enterprise.  A  conspicuous  exception  is  to  be  found 
in  the  matter  of  canals,  which  have  been  built  by  states  as 
well  as  by  private  corporations.  River  improvements  under- 
taken by  public  authority  have  generally  been  treated  as  pul)- 
lic  works,  not  managed  for  profit.  Irrespective  of  any  federal 
(|uestions  of  interstate  commerce,  the  state,  mider  the  doctrine 
enunciated  in  Illinois  Central  R.  Co.  v.  Illinois  (1),  cannot 
bargain  away  the  control  of  a  navigable  river  which  consti- 
tutes a  natural  highway  :^^  but  a  different  doctrine  may  apply 
where  a  river  is  not  naturally  navigable.  In  Elaine  a  grant 
<if  an  exclusive  right  of  navigation  to  individuals  in  consid- 
eration of  their  improving  the  navigation  of  the  river  was 
sustained."*^  The  state  of  Kentuck}'  granted  to  a  private  cor- 
])oration  the  control  of  the  navigation  of  a  river  with  the  right 
to  collect  tolls  in  consideration  of  keeping  locks  and  dams  in 
repair,  for  a  term  of  thirty  years ;  this  was  held  to  be  an  irre- 
pealable  contract,  though  subject  to  the  exercise  of  the  power 
of  eminent  domain,  on  payment  of  compensation.^^  A  similar 
grant  by  the  legislature  of  ^Michigan  was  sustained  by  the 
federal  supreme  court."*^  This  subject  has  less  importance 
since  navigable  rivers  have  passed  so  largely  under  the  con- 
trol of  the  federal  government. 

>j  662.  Bank  notes. — The  issue  of  bank  notes  to  circulate  as 
money  is  a  function  requiring  such  extensive  safeguards  for 
the  protection  of  the  public  that  it  has  never  been  regarded  as 
a  matter  of  common  right,  but  as  a  privilege  to  be  granted  by 
the  state.^^  There  is  no  logical  reason  why  it  should  not  be 
on  the  same  terms  open  to  all,  and  this  is  practically  the  law 
luuler  the  present  American  national  bank  system.^"^  But  as 
long  as  a  positive  act  of  the  state  is  necessar}'^  to  authori.se  the 
issue,  it  follows  that  in  the  absence  of  prohibitions  against 
special   legislation  the  authorisation  may  be   granted  to  one 

*i  146  U.  S.   387.  « Briscoe    v.    Bank    of    Common- 

42  Moor  V.  Veazie,  32  Me.  343.  wealth    of   Kentucky,    11    Pet.    257; 

•»■■'  MeReynolds    v.    Smallhousc,  71      Davidson  v.  Lanier,  4  Wall.  447. 

Ky.     447;      Commissioners     etc.  v.          ■««  U.     S.     Rev.     Stat.     Title     62, 

(heen  River  Co.,  79  Ky.  73.  chap.  2. 

4+ Sands    v.    IManistee    River    Ini- 
I  movement  Co.,  123  U.  S.  288. 


686  SPECIAL  PRIVILEGES.  §  663 

bank  or  to  a  limited  number  of  banks,  and  thus  constitute  a 
monopoly  for  the  time  being.  In  this  respect  the  note  privi- 
lege resembles  other  franchises. 

MONOPOLIES    TO    SECURE    THE    BENEFIT    OF    ORIGINAL    PRO- 
DUCTION   (AUTHOR'S    AND    INWENTOR'S    RIGHTS). 

§§   663-665. 

§  663.  Equity  of  exclusive  right.— The  substance  of  pat- 
ent and  copyright  is  the  sole  right  to  reproduce  and  exploit 
commercially  ideas  which  have  been  embodied  in  concrete  form. 
Both,  therefore,  strictly  speaking,  constitute  monopolies.  They 
ditfer  from  other  monopolies  in  that  they  do  not  violate  the 
principle  of  equality,  since  the  author  or  inventor  has  created 
the  field  of  profitable  activity  Avhich  the  law  reserves  to  him. 
The  exclusion  of  others,  while  under  a  purely  mechanical  con- 
ception of  rights  of  property  an  interference  with  their  natural 
liberty,  is  dictated  by  strong  considerations  of  equity  which 
all  civilised  sj^stems  of  law  have  come  to  recognise.  Con- 
ceivably these  rights  might  have  been  developed  as  forms  of 
property  ("founded  on  labor  and  invention."  as  Blackstone 
says^")  by  the  common  law,  as  the  exclusive  right'to  use  words 
and  symbols  in  connection  with  merchandise  has  been  evolved 
by  the  courts  under  the  name  of  trade-marks.  In  fact,  it  was 
formerly  believed  by  eminent  .judges  that  at  common  law  the 
author  of  a  literary  composition  even  after  the  first  publica- 
tion retained  the  right  to  reprint  and  publish  the  same  in  per- 
jietuity  to  the  exclusion  of  all  others,"'''  a  doctrine  which  was 
denied  in  America,-*^  and  seems  to  have  been  abandoned  in 
England.^"  As  regards  patents,  they  were,  as  the  name  im- 
plies, originally  created  by  royal  letters  patent  by  virtue  of 
the  Prerogative,  and  this  practice  received  parliamentary  sanc- 
tion when  the  statute  against  monopolies  provided  thai  it 
slKMild  not  exlciid  to  letters  patent  in  favor  of  liie  ti'iie  ;in(l 
first  inventor  for  the  sole  working  or  making  of  a  new  luann- 
f;ii-tnre.    Author's  i-ights  were  secni-ed  by  statute  in  1709.' 

S  664.  Federal  legislation.  — The  e(.nstitution  oi"  the  United 
►States  sanctions  lliis  elnss  of  nKniopolies  by  empowering  Con- 

•«T  Coinmontaric-H    II,   -lOr).  r-"  .loilreys  v.  Booscy,  4  Jl.  L.  Cas. 

'«  I)(iTi:iI.ls(.ii    V.    Beckct,     I     Rurr.  Sl.'j,   ]8.'54;   Reade  v.  Conquest,  9  C. 

L'40H,  1774;   Millar  v.  Taylcr.   I  P.urr.  B.   (N.  S.)   755,  1861. 

-'303.  1  ,S  Aii.K-.  ell.  21. 

4»Wheutou   V.   Petcra,  S    Pc^t.  500. 


§  GG5 


AUTllOliS'  AND  JNVEXTOKS'  RIGHTS. 


687 


gress  "to  promote  the  progress  of  science  and  useful  arts,  by 
securing  for  limited  times  to  authors  and  inventors  the  ex- 
elusive  right  to  their  respective  writings  and  discoveries."- 
The  legislation  of  Congress  under  this  clause  recognises  two 
classes  or  rights:  patents  and  copyrights.  The  patent  right 
consists  in  the  exclusive  right  to  make,  use  and  vend  any  new 
and  useful  art,  machine,  manufacture  or  composition  of  mat- 
ter,2  or  any  new  and  original  design,  impression,  ornament, 
shape  or  configuration  of  any  article  of  manufacture  ;■*  the  copy- 
right in  the  sole  liberty  of  printing,  reprinting,  publishing  and 
vending,  or  completing,  copying,  executing  and  finishing,  any 
book,  map,  chart,  dramatic  or  musical  composition,  engraving, 
cut,  print,  photograph,  painting,  draAving,  chromo,  statue  or 
models  for  works  of  the  fine  arts,  or  of  publicly  performing 
and  representing  any  dramatic  composition.-'' 

This  legislation  evidently  does  not  cover  all  novel  ideas,  in- 
ventions, discoveries  or  creations,  the  sole  exploitation  of 
which  would  be  profitable  (e.  g.  architects'  designs,  medical 
discoveries,  improvements  in  methods  of  business),  and  it  has 
not  been  decided  whether  or  to  what  extent  the  states  in  the 
absence  of  congressional  legislation  or  in  cases  not  covered  by 
the  constitutional  clause  may  recognise  rights  of  similar  char- 
acter, except  that  trade-marks  are  generally  protected  as  com- 
mon law  rights  by  the  states,  and  cannot  be  placed  under 
exclusive  federal  control.*'  The  difficulty  of  determining  ques- 
tions of  novelty,  priority  and  identity  militates  against  a 
very  great  enlargement  of  this  class  of  rights,  and  would,  if 
it  were  attempted,  lead  to  many  of  the  evils  of  monopolies. 

§  665.  Monopoly  character.— The  monopoly  character  of 
patent  and  copyright  is  recognised  in  the  laws  of  all  countries 
by  granting  the  respective  rights  for  limited  periods  only : 
under  foreign  systems  also  by  making  it  a  duty  to  exercise 
the  privilege  for  the  public  benefit.  Thus  in  England  the  Board 
of  Trade  may  order  the  patentee  to  grant  licenses  on  such 
terms  as  the  board  may  deem  just,*^  and  if  a  book  which  is  of 
importance  to  the  public  is  out  of  print,  and  the  holder  of  the 
copyright,  after  the  death  of  the  author,  refuses  to  reprint  it, 
the  Judicial  Committee  of  the  Privy  Council  may  upon  petition 


2Constn.  I,,  8. 

3  Rev.  Stat.  §  4884,  4886. 

4  §  4929. 


5  §  4952. 

«  Trade-Mark  Cases,  100  U.  S.  S-J. 

7  §  22  Patents  Act,  1883. 


ijSS  SPECIAL  PRIVILEGES.  §  666 

of  another  person,  grant  him  a  license  to  reprint.^  Similar  pro- 
visions would  undoubtedly  be  within  the  power  of  Congress, 
and  it  may  be  mentioned  that  before  the  establishment  of  the 
federal  constitution  an  act  of  New  York  required  authors  to 
furnish  their  works  at  reasonable  prices.^ 

MONOPOLIES   AGAINST   COMMON   RIGHT.      §§   666-C73. 

§  666.  State  monopolies.— Monopolies  which  are  justified 
neither  by  the  purpose  of  securing  the  fruits  of  invention  or 
authorship,  nor  by  the  impossibility  of  granting  certain  priv- 
ileges indiscriminately  to  all  alike,  are  established  either  as 
measures  of  revenue  and  finance,  or  for  the  encouragement  and 
support  of  undertakings  needed  by  the  public,  or  to  restrict 
or  supervise  a  business  afilecting  public  safety  or  morals.  The 
monopoly  may  be  exercised  either  by  the  state  itself  or  one 
of  its  subordinate  divisions,  or  may  be  granted  to  a  private 
individual  or  corporation. 

The  great  monopolies  of  European  states  (tobacco,  matches, 
formerly  salt),  are  financial  in  character,  the  lottery  monop- 
olies belong  to  the  third  class,  while  the  post  office  monopoly 
is  primarily  an  institution  for  the  public  benefit  which  must 
exclude  competition  from  its  profitable  business  in  order  to 
carry  on  the  unprofitable  business.  The  coinage  of  money  is 
an  authoritative  prerogative  essential  to  the  authentication  of 
the  quality  of  legal  tender,  and  thereby  differs  from  ordinary 
monopolies. 

State  monopolies  are  so  uncommon  in  this  country  that  their 
constitutionality  has  not  been  much  discussed.  The  monop- 
olistic feature  of  the  post  office  has  never  been  questioned.'" 
The  monopoly  of  the  liquor  traffic  established  b}^  the  South 
Carolina  dispensary  act  was  first  declared  unconstitutional,^^ 

8  Copyright  Act  1842,  §  5.  cannot  be  prevented  if   :\   ]>romiscu- 

'■'  1786,  1  Greenl.  275.  ous  use  of  transmitting  or  taking  up 

i"U.  S.  Rev.  Stat.  §  3982  et  seq.  of  foreign  Ictlers  and  packcls  should 

In    a    royal    grant    of    the   office    of  be  sufrcrod. "    Cromwell  spoke  of  the 

postmaster    to    foreign    parts    (July  Post  Office  as  the  best  means  to  dis- 

19,     1632,    XIX    Rymcr's     Foedera  cover    and    prevent    dangorous    and 

SS.^)  the  monopoly  is  justified  by  the  v*icked  designs  against  tlic  common- 

considcratinn  "liow  mndi  it   imports  wealth. 

to    the   state    of    the    King   and    this  n  Mi-('ulloiigh   v.   Hrown,  41   S.  C. 

realm  that  the  secrets  thereof  be  not  220,  23  L,  R.  A.    110. 
disclosed    to    foreign    nntions,    which 


§  Gtj7  STATE  AND  MUNICIPAL  MONOPOLIES.  689 

but  lat('r  oil  uphold  as  a  valid  measure  of  police  control  of  the 
traffic  in  an  article  dangerous  to  the  public  welfare,  it  bein^i: 
at  the  same  time  admitted  tliat  the  monoi)olisin|i^  of  an  ordinary 
article  of  commerce  would  be  unconstitutional.'-  Where  it 
is  held  under  special  constitutional  provisions  that  the  state 
may  not  engage  in  an  ordinary  business,' ^  a  state  monopoly 
would  thereby  likewise  be  excluded;  and  so  where  it  is  held 
that  a  municipal  corporation  may  not  be  authorised  to  assume 
ordinary  economic  functions  (like  the  supply  of  fuel),  a  munici- 
pal monopoly  would  be  impossible.'^ 

$5  667.  Municipal  monopolies.— If  a  state  monopoly  is  valid, 
a  municipal  monopoly  may,  it  seems,  be  authorised  by  legisla- 
tion; the  validity  of  municipal  monopolies  therefore  resolves 
itself  into  a  question  of  delegated  powers.  The  question  has 
arisen  chiefly  with  regard  to  market  and  slaughter-house  mo- 
nopolies. Market  monopolies  have  been  upheld  in  a  number 
of  cases,  especially  in  Southern  states;''^  in  Wisconsin  a  power 
to  direct  the  location  and  management  of  slaughter-houses  has 
been  held  to  sanction  the  establishment  of  a  municipal  slaugh- 
ter-house monopoly;^*'  while  in  Illinois  a  monopol}^  has  been 
held  illegal  where  the  power  was  merely  to  establish  a 
market.'"  It  does  not  appear  that  the  validity  of  a  municipal 
market  monopoly  expressly  authorised  by  the  legislature  has 
ever  been  denied ;  however,  an  express  authorisation  to  prohibit 
private  markets  is  not  usual.^'*  The  cases  sustaining  the  nui- 
nicipal  monopoly  hold  that  market  regulations  must  be  im- 
partial and  allow  to  all  an  equal  opportunity  to  sell.  There- 
fore an  ordinance  allowing  sales  only  at  market  stalls  is 
invalid  where  the  market  does  not  furnish  accommodations  to 

12  state  V.  Aiken,  42  S.  C.  222,  26  St.   Rep.   328.     For   earlier   authori- 
L.  E.  A.  345.  ties    see    Dillon    Municipal    Corpora- 
is  Rippe  V.  Becker,  56  Minn.  100,  tions,  §  386. 
23  L.  R.  A.  857.  ^"^  Milwaukee    v.    Gross,    21     Wis. 

14  Opinion   of  Justices,   155   Mass.  241,  91   Am.  Dee.  472,  1S66. 
598,   30   N.   E.   1142;    Re   Municipal         i"  Caldwell  v.  Alton,  33  111.  416. 
Fuel  Plants,    (Mass.),  66  N.  E.  25,         is  In     Louisiana     cities     are     au- 
1903.  thorised  by  statute  to  prescribe  the 

15  Newson  v.  Galveston,  76  Tex.  distance  at  which  private  markets 
559;  Jacksonville  V.  Ledwith,  26  Fla.  may  be  located  from  public  mar- 
163;  State  v.  Sarradat,  46  La.  Ann.  kets.  New  Orleans  v.  Faber,  105  La. 
700,  24  L.  E.  A.  584;  Ex  parte  208.  53  L.  R.  A.  165;  Natal  v.  Louis- 
Byrd,  84  Ala.  17,  4  So.  397,  5  Am.  iana,  139  U.  S.  62L 

44 


G90 


SPECIAL  PKIVILEGES.  §  668 


persons  desiring  to  sell  their  produce,  and  they  would  be  com- 
l)elled  to  sell  to  the  tenants  of  stalls  in  order  to  dispose  of 
their  goods.^''  .Market  monopolies  are  not  common  in  this 
country  and  other  municipal  monopolies  hardly  exist.20  With 
regard  to  public  monopolies  generally  it  may  be  said  that  since 
in  a  measure  all  citizens  are  partners,  the  constitutional  objec- 
tions against  monopolies  draAvn  from  the  principle  of  equality 
do  not  apply. 

§  668.     Private  monopolies  against  common  right— Ferries. 
—  The  most  common  and  conspicuous  kind  of  a  private  monop- 
oly is  that  of  keeping  a  ferry  across  a  river.     In  the  laws  of 
most   of  the   states  provisions   are   to   be   found   requiring  a 
license  for  setting  up  a  ferry,  and  prohibiting  the  carrying 
of  persons  for  hire  across  a  river  Avithin  a  given  distance  from 
an  established  ferry.    It  is  a  commonly  accepted  doctrine  that 
this  is  not  against  common  right,  since  immemorially  the  right 
to  keep  a  ferry  has  been  regarded  as  a  franchise.^^     Hale  in 
his  treatise  de  jure  maris,  chapter  2,  says,  "the  King  by  an 
ancient  right  of  prerogative  hath  had   a  certain  interest  in 
many  fresh  rivers     *     *     *     1st,  a  right  of  franchise  or  priv- 
ilege that  no  man  may  set  up  a  common  ferry  for  all  pas- 
sengers, Avithout  a  prescription  time  out  of  mind,  or  a  charter 
from  the  King.    He  may  make  a  ferry  for  his  OAvn  use  or  the 
use  of  his  family,  but  not  for  the  common  use  of  all  the  King's 
subjects  passing  that  Avay ;  because  it  doth  in  consequence  tend 
to  a  common  charge,  and  is  become  a  thing  of  public  interest 
and  use,  and  every  man  for  his  passage  pays  a  toll,  which 
is  a  common  charge,  and   every  ferry  ought  to  be  under  a 
public  regulation,  viz:  that  it  keeps  attendance  at  due  times, 
keep  a  boat  in  due  order,  and  take  but  reasonable  toll."    And 
lilackstone  III  219  says:     "Where   there   is  a   ferry   by    prc- 
scriplion,  llx'  oavikt  is  IxMimi  In  keep  it  ahvays  in  repair  and 
readiness,   for  lln-  ease  ol"  all   tlir    King's  subjects;  otherwise 
he  may  be  grievously  amerced  ;  it  would  be  therefore  extremely 

'"  Jhi{,'li<'s     V.     Dt'tniit,     TH     Midi.  471,  where  .siicli  :i  iiKnuipoly  \v;is  lield 

.'574,  4  L.  K.  A.  863.  ii'it    tn   1"^   forbidden   by   an   express 

20  Municipal    Aflfairs,    Dec,    1898,  eoiistitiitional      declarnfion      :in;aiiist 

Miln    R.     Maltbie    Municipal    Fiinc-  monopolies;   also    Plumb   v.   Christie, 

lions.       Ah    to    loeal    liquor    monop-  10;>  (!a.  686. 

olics   similar    to    the    South    CMn.liiia  -'  M    is  so  treated   by   \ho  Tfevised 

State  monopoly  see  Ouy  v.  Cumber-  I.iiws  of  Massachusetis  of   l()49. 
land   Co.    r'ommissioners,    122    N.   C. 


§668  ri;iv'K'ii-:s.  ,;m 

hard  if  a  new  ferry  were  siiHVrcd  to  share  his  profits  which 
does  not  also  share  his  burden,"  As  a  matter  of  hj^ie  and 
I)riiieii)k',  these  arguments  are  not  eonchisive.  'Die  ferry  fran- 
chise does  not  conllne  itself  to  the  connection  bi-tween  two 
highways  on  opposite  sides  of  a  river,  the  landing  facilities  on 
which  cannot  be  matter  of  indiscriminate  common  right;  but 
it  forbids  the  running  of  a  ferry  between  two  i)oints  privately 
owned, 2-  although  this  can  be  done  witliout  asking  any  special 
favor  at  the  hands  of  the  public ;  for  a  fei-i-y  does  not  encuiiilxT 
a  river  or  affect  navigation  as  a  bridge  does,  and  the  right  to 
navigate  a  public  river  is  not  a  special  privilege.  The  right 
to  exact  toll  cannot  be  said  to  be  the  privilege  constituting  the 
franchise,  for  it  would  not  legalise  an  unauthorised  ferry,  if 
the  keeper  were  to  make  a  bargain  with  each  passenger  regard- 
ing his  fare,  and  while  anybody  may  keep  a  boat  for  crossing 
from  his  land  for  himself  and  his  family ,2 3  it  has  been  held 
that  numerous  persons  may  not  combine  to  establish  a  ferry 
for  their  joint  use.^^  The  gist  of  illegality  at  common  law 
is  the  injury  done  to  the  established  ferry  by  diverting  its 
business,  and  the  true  consideration  of  public  policy  underly- 
ing the  franchise  is  that  an  undertaking  beneficial  to  the  public 
should  be  encouraged  by  keeping  off  competition  and  thereby 
securing  a  reasonable  profit.  Such  a  consideration  may  per- 
haps legitimately  induce  the  legislature  to  withhold  the  grant 
of  a  competing  franchise  where  legislative  authorisation  is  in 
Ihe  nature  of  things  indispensable,  as  in  the  ease  of  a  bridge 
monopoly,  but  it  is  not  a  sufficient  justification  for  prohibiting 
the  exercise  of  a  common  right.  For  to  what  useful  business 
could  not  the  same  argument  be  made  to  apply?  Ai)othecaries 
were  formerly  encouraged  in  a  similar  way,  and  therefore 
l)harmacies  are  in  Germany  to  the  present  day  monopolies.  In 
reason  the  ferry  monopoly  stands  on  no  better  foundation ; 
but  since  the  right  has  always  been  regarded  as  a  franchise. 
the  prohibition  of  private  ferries  is  not  considered  to  be  an 
interference  with  common  right,  and  so  Die  exclusive  privilege 


22  Young  V.  Harrison,  6  Ga.   130;  Cal.    236;    Greer   v.    Hangabook,    47 

School    Trustees   V.   Tatman,    13   III.  Ga.  282  (statutory  provision)  ;  Alox- 

l;7;    Stark    v.    Miller,    3    Mo.    470;  andria  Ferry   ("o.   v.   Wisdi,   73   Mo. 

Murray  v.   Menefee,   20  Ark.  .561.  (inr).  39  Am.  Kep.  .^)3.-). 

•■;:' Trent  V.  Carteraville  Bridge  Go..  •■;■*  Warren    v.    Tanner.    21    Ky.    Ti. 

11   Leigh   544;    Hanson   v.   Webb,   3  \U']k  1678,  40  L.  K.  A.  248. 


692  SPECIAL  PEIYILEGES.  §  669 

is  uniformly  upheld.^'''  even  in  states  where  monopolies  are 
expressly  forbidden.-*^  In  North  Dakota,  the  constitution  of 
which  forbids  all  special  privileges  and  immunities  which  upon 
the  same  terms  shall  not  be  granted  to  all  citizens,  the  court 
justifies  these  privileges  on  the  grovmd  that  public  opinion  has 
never  crystallised  against  grants  of  exclusive  ferry  franchises.^" 
In  Missouri,  however,  it  has  been  intimated  that  under  the 
constitution  of  1875  the  grant  of  an  exclusive  ferry  privilege 
might  be  invalid.-* 

§  669.  Monopoly  as  a  means  of  police  control— Slaughter- 
house cases. — It  may  be  argued  that  if  the  state  or  a  municipal- 
ity may  itself  monopolise  a  business  dangerous  to  the  health 
or  morals  of  the  community,  it  should  be  allowed  to  employ  a 
private  agency  for  the  same  purpose,  if  more  economical,  and 
thus  entrust  the  management  of  the  monopolised  business  to 
an  individual  or  a  corporation.  The  monopol}'  Avottld  then  be 
an  instrument  of  the  police  power.  This  view  was  taken  by 
the  Supreme  Court  of  the  United  States  of  the  slaughter-house 
monopoly  in  the  City  of  New  Orleans,  Avliich  upon  the  fullest 
discussion  was  sustained  as  not  contravening  the  Fourteenth 
Amendment;-''  and  while  in  a  later  case^"  it  was  doubted 
whether  that  particular  monopoly  was  in  reality  granted  for 
the  preservation  of  the  i)ublie  health,  the  principle  of  the  de- 
cision has  not  been  overruled. 

The  decision  in  the  Slaughter-House  Cases  is  not  binding 

25  McGowan   v.   Stark ;    1    Nott   &  27  Patterson  v.  Wollman,  5  N.  D. 

McC,   S.   C.    387,   9   Am.   Dec.   712,  608. 

1818;    Mills  v.  County  of  St.  Clair,  •■Js  Carroll    v.    Campbell,    108    Mo. 

4    111.    53,    S    IIow.    5(59;    Stark    v.  550.     The  grant  of  a  ferry  franchise 

Miller,   3   Mo.   470,    1S34;    Norris  v.  is   not    in    itself   exclusive    of    other 

]''armer8'  Teamsters  Co.,  6  Cal.  590;  rompcting    grants.      Fall    v.    Sutter 

McRoberts  v.  Washbiirne,   10   Minn.  Co.,  21  Cal.  237. 

23;  Sullivan  v.  Lafayette  Co.  Sui>or-  In  Germany  ferry  privileges  have 

visors,  58  Miss,  790 ;  Prosser  v.  Wa-  been   largely   abolished ;    Meyer   Ver 

pello  Co.,  18  lo.  327;   Douglas'  Ap-  waltungsrecht   I,   p.    554, 

]ir';il,   118  Pa.  St.  65;   Mayor  etc.  v.  -'"  Sla\ight(-r  House  Cases,  16  Wall. 

Slarin,  106  N.  Y.  1  ;  Nixson  v.  Reed,  .36,    LS72;    State    v,    Fagan,    22    La, 

8  S.  D.  507,  .32  L.  R.  A.   315;   and  Ann.  545. 

authorities  fited  12  A.  &  E.  Cyelop.  -t"  New   Orleans  Gas  Light   Co.   v. 

of  Law,  2  cdn.  j).  1090,  note  2.  Louisiana  Light  etc.  Co.,  115   U.  S. 

•-'■•  Broadway     etc.     Ferry     Co.     v.  (;50. 
Hankf-y,    31    Md.    346;    Toll    Bridge 
Co.  v.  Flowers,  110  N.  C.  381,  1892. 


§670  MOXOPOT.IES  AdAlNST   (  u.M.MOX    HKUIT.  <J93 

upon  the  state  courts,  which  may  lujld  siicli  a  niDiiopdly  (con- 
trary to  the  principles  of  the  constitutions  of  tln-ir  i-cspcctive 
states,  but  the  logical  consequence  of  such  a  doctrine  would  be 
either  to  forbid  state  or  municipal  monopolies  altogetlit-r,  or 
to  allow  them  only  on  condition  that  the  monopoly  be  operated 
directly  by  the  state  or  municipality  through  its  own  em- 
ployees. 

Jj  670.  License,  lease,  or  contract. — If  it  be  conceded  tliat 
some  business  is  so  much  affected  with  a  public  interest  that 
it  may  be  municipalised  to  the  exclusion  of  independent  pri- 
vate enterprise,  and  that  at  the  same  time  the  business  may 
be  operated  through  private  or  corporate  agency,  the  delega- 
tion generally  takes  the  form  of  a  license,  lease,  or  contract, 
and  not  of  a  grant  of  a  franchise,  which  as  a  rule  is  beyond 
municipal  powers,  and  which  by  many  state  constitutions  is 
expressly  inhibited  to  the  state  legislatures.^^  The  difference 
is,  however,  one  of  form  rather  than  of  substance,  the  licensee, 
lessee,  and  contractor  being  as  well  protected  as  the  holder 
of  a  franchise,  while  he  is  not  subject  to  proceedings  in  the 
nature  of  a  quo  warranto.  The  validity  of  such  delegation 
has  been  repeatedly  recognised.  Thus  the  city  of  New  Orleans 
allowed  private  owners  to  establish  markets  within  a  district 
otherwise  forbidden  to  private  markets,  and  to  maintain  such 
markets  under  contract  with  the  city.  The  owners  conveyed 
the  land  and  the  market  to  the  city  and  became  its  lessees,  they 
■y^ere  to  be  subject  to  all  market  regulations  and  their  rates  of 
charges  were  fixed  by  the  city.  These  were  held  to  be  pub- 
lic markets.32  go  park  authorities  may  give  one  person  the 
exclusive  privilege  of  maintaining  a  restaurant  in  a  park,-'-' 
and  it  has  been  held  that  a  city  may  contract  with  one  person 
for  the  removal  of  all  garbage. ^^  There  are,  on  the  other  hand, 
cases  in  which  this  latter  power  bar;  been  denied,  on  the  ground 

■■*i  Chicago  City  K.  R.  Co.  v.  Peo-  chairs    lias    been    held    to    interfere 

pic,  73  111.  541.  with   the   common   use  of   the   park, 

•''2  New  Orleans  v.  Faber,  105  La.  since    it    led    to     the    removal     of 

208,  53  L.  E.  A.  165.  benches.    Kurtz  v.  Clausen,  77  X.  Y. 

33  State  V.  Schweiehardt,  109  Mo.  S.  97. 
496;   Gushee  v.  New  York,  42  App.  34  Grand  Kapids  v.  Do  Vrios,   12:? 

Piv.  37,  58  N,  Y.  S.  967;   privilege  Mich.  570,  Kerr  v.  Simmons,  82  Mo. 

of  running  stages,  Amer.  Steel  House  269;    State    v.    Orr,    68    Conn.    101; 

Co.  V.  Willcox,  77  N.  Y.  Supp.  1010;  Smiley  v.   McDonald,  42  Neb.  5,   27 

but  an  exclusive  privilege  of  letting  L.  K.  A.  540,  mollified,  so  as  to  apply 


594  SPECIAL  i'lUVlLEGES.  §  672 

that  uiidt,'!-  proi)i'r  regulations  the  busmess  can  be  thrown  open 
«>-enerallv,  thouirh  a  license  may  be  required. ^^ 

§  671.  Power  over  monopolised  business.— The  question  of 
the  validity  of  delegated  monopolies  against  common  right 
cannot  be  regarded  as  settled,  but  as  a  matter  of  legislative 
practice  the  tendency  seems  against  them.  If  allowed,  it  can 
be  only  upon  condition  that  in  employing  the  private  agency 
the  state  or  municipality  does  not  surrender  its  control  or  al- 
low the  private  management  to  be  made  an  instrument  of  op- 
pression. These  qualifications  were  recognised  in  the  grant 
of  the  New  Orleans  slaughter-house  monopoly,  which  subjected 
the  business  to  police  regulations,  limited  its  charges,  and  se- 
cured equal  service  to  all.  It  should  also  be  observed  that 
the  slaughter-house  monopoly  was  held  by  the  Supreme  Court 
to  be  revocable  by  the  legislature  before  the  expiration  of  its 
term.'*" 

ii  672.  Restriction  of  numbers.— If  tlie  two  main  objections 
to  a  monopoly  are  that  they  prevent  free  competition  and 
shut  out  the  mass  of  citizens  from  certain  occupations,  it  is 
only  a  diil'erence  of  degree  whether  the  right  to  cai'ry  on  the 
business  is  confined  to  one  or  to  a  circumscribed  number  or  to 
a  specified  class.  It  has,  however,  been  held  in  Arkansas 
that  the  constitutional  provision  against  monopolies  has  no 
application  to  a  restriction  of  numbers  in  a  business  dangerous 
to  till'  public  welfare,-"*"  and  the  Suprc^me  Court  of  Massachu- 
setts has  said  that  the  prohibition  of  exclusive  privileges  is 
not  violated  where  the  exclusion  is  merely  the  collateral  and 
ineideiilal  clVect  of  provisions  enacted  solely  with  a  view  to 
secure  the  Welfare  of  the  connnunity.'''*  Where,  however,  the 
constitution  c.\|)ressly  provides  that  the  legislature  shall  not 
1,'rant  to  any  citizen  or  class  of  citizens  privileges  or  immunities 
which  upon  the  same  terms  shall  not  equally  belong  to  all  citi- 
zens,  it    lias   h.cii    licl.l,   n|)on  very   full   consideration,   that   a 

only   to  miisanccH  /*rr  sr,  in    iior   v.  W.  869;  sec  also  Chieafjo  v.  Riimpf, 

KoHH,  00  \.  W.  son,  r,7  L.  K.  a.  89.') .  45  Til.  00. 

HiavenK'T  MonoiKilioH  exist  in  a  few  •'•'Butchers'    Union    Co.    v.    Cres- 

othiT   i-ificH;    HOC"   Clwipin    \hniifip!il  cent  City  Co.,   Ill  V.  S.  746;   see  § 

Siinitatir.n,   p.  601 -O'l:}.  679,  ivfrn. 

^r- Matter  of  l.owp,  r>4  Kans.  7r)7,  -t  Ex  parte  Levy,  43  Ark.  42. 

27  li.   K.   A.  .".4.'');  State  v.  Tlill,  126  •'«  Commonwealth    v.    Blackington, 

N.  ('.  li:»t.  .^O  L.  M.  A.  47.T;   I  lor  v.  24   Pick.   3.'i2 ;    Decie  v.   Brown,   167 

Rofw  (Neb.),  •'')7  T..  R.  A.  89.1,  90  N.  Mass.  290,  45  N.  E.  765. 


§  673  KESTRICTIOX   OF  NUxMBEKS.  (395 

liquor  license  may  not  be  refused  simply  because  a  sufficient 
number  have  already  been  granted.'"'  In  England  also  it  has 
been  held  that  an  absolute  limitation  of  numbers  is  incon- 
sistent with  the  right  which  each  applicant  has  to  the  exercise 
of  judicial  discretion  by  the  licensing  authorities  in  his  par- 
ticular case.'^^' 

The  restriction  of  licenses  in  point  of  number  is  a  not  un- 
common feature  of  liquor  legislation,  so  especially  in  IMassa- 
chusetts  (not  more  than  one  to  each  1000  inhabitants,  in  Bos- 
ton one  to  each  500).  Practically  the  same  result  follows 
where  public  need  is  one  of  the  controlling  factors  in  granting 
or  refusing  licenses,  or  where  excessive  number  is  a  good 
-ground  of  refusal.'*^  Where  numbers  are  restricted,  some 
approach  to  equality  may  be  secured  by  provisions  for  fair 
competition  in  the  matter  of  application,  to  avoid  favoritism. 
But  where  a  discrimination  is  made  among  applicants  of  ecjual 
merit,  and  numbers  are  limited,  there  is,  after  all,  something' 
in  the  nature  of  a  monopoly,  and  the  constitutional  principle 
against  exclusive  privileges  suffers  an  exception  on  the  ground 
of  public  safety  or  morals. 

§  673.  Resulting  privileges.— It  remains  to  consider  certain 
statutory  provisions  which,  while  not  intended  to  grant  mo- 
nopolies, have  incidentally  the  effect  of  creating  exclusive 
privileges. 

1.  An  act  of  Iowa  prohibited  the  sale  of  products  of  pe- 
troleum for  illuminating  purposes  which  will  emit  combustible 
vapor  at  a  temperature  of  less  than  105  degrees  F.,  except  the 
lighter  products  of  petroleum  when  used  in  the  Welsbach  lamp. 
The  act  was  declared  unconstitutional  on  the  ground  that  it 
conferred  an  exclusive  privilege  upon  the  manufacturers  of 
that  lamp.^-     This  decision  is  based  upon  the  important  prin- 

39  Ex  parte  Levy,  43  Ark.  4^.  prescribing   the   kiud   of   lights   and 

40  Eeg.  V.  Walsall  Justices,  3  C.  L.  lamps  to  be  employed.  An  electric 
K.  100.  comijauy  in  the  village  had  the  sole 

41  So  in  Pennsylvania,  and  for-  right  to  use  these  lights,  which  were 
merly  in  New  York,  see  §§  210,  211,  patented,  within  the  village,  so  that 
.sayra.  the  railroad  company  had  to  procure 

42  State  v.  Santee,  111  lo.  1,  53  its  lights  from  this  company.  This 
L.  R.  A.  763.  In  Cincinnati  &(-.  R.  was  sustained  on  the  ground  that  the 
Co.  V.  Bowling  Green,  .57  Oh.  St.  336,  electric  company  was  under  obliga- 
iin  ordinance  required  a  railroad  tion  to  furnish  its  lights  on  reason- 
company  to  maintain  electric  lights,  able  terms. 


^^96  SPECIAL  PKIVILEGES.  §  673 

fiple  that  police  regulations  in  requiring  arrangements  or 
safeguards  must  describe  them  abstractl.y  and  by  reference 
to  the  required  (jualities,  and  must  not  name  some  specific  pat- 
ented article  or  the  product  of  some  particular  manufacturer. 
As  long  as  it  is  possible  that  the  prescribed  standard  may  be 
reached  by  others,  their  exclusion  constitutes  an  unlawful  mo- 
nopoly in  favor  of  the  one  named.^'' 

2.  An  act  of  New  York  provided  that  the  sale  of  transporta- 
tion tickets  should  be  restricted  to  agents  specially  authorised 
by  transportation  companies,  hut  fui'ther  allowed  the  properly 
authorised  agent  of  any  transportation  company  to  purchase 
from  the  agent  of  another  company  a  ticket  for  a  passenger 
desiring  a  through  ticket  over  the  lines  of  both  companies.  It- 
was  held  that  by  this  latter  provision  the  agent  of  one  company 
was  really  enabled  to  engage  in  the  ticket  brokerage  business 
generally,  that  thus  the  ticket  brokerage  business  was  con- 
lint'd  to  api)ointees  of  transportation  companies,  and  that  this 
power  of  selection  confided  to  corporations  wholly  uncon- 
nected with  the  state  government  constituted  a  monopoly  and 
vitiated  the  act.^' 

.'3.  In  Illinois  it  has  been  held  that  the  power  to  license  and 
control  commissioii  incrchants  may  not  be  vested  in  a  board 
appointed  hy  iiicor-poiated  associations  organised  for  tlic  pro- 
motion of  interests  allied  to  the  produce  commission  business, 
since  tliis  violates  the  provision  of  the  state  constitution'*^'  pro- 
hibiting the  legislature  fi-otn  granting  to  any  cor})oration, 
assoeiation.  «»r  individual  any  special  or  exclusive  ])rivilege, 
ujimuiiity  or  fi-anehise.'"  This  decision  likewise  embodies  an 
important  principle,  which  has  not  yet  obtainecj  full  recogni- 
tion, namely,  that  licensing  and  examining  powers  should  not 
be  granted   \n  |>iir1icuhir  named   associations  or  institutions.'*^ 


♦3  Hco    iiImo    KiMliltuni    v.    ("hicagi),  piililic    coiitracls     (hchl    ill(>jr!il)    soo 

171    III,  .3:<K,  4J)  \.  K.  r)3U',  'M  \j.  1{.  Adams   v.  Bnnnan,    177    ill.    I'.H.  .TJ 

A.  4H2.     I)iM<Timinati(inH  ami  prnfcr-  N.   K.  314. 

enccn     in     imldii-     (•ontra<'lH     involve  "  Pooplc      v.      Wardi'ii      (if      Citv 

Monicwhiit      <lilTi'icnt      fonHidorations  Prison,  1.')7  N.  \.  I  l(i,  .'ll  N.  E.  100(5. 

■     ti  those  a|i|diial)le  to  the  cxcrciHc  ""'  Art.  4,  §   'Jii. 

.1    ! lie  |ioliiT  power,  oHpCM'ially  where  '"  Laslicr    v.    People,    is;5    III.    l"_'(i, 

patented    inventiotifi    are    to    In-    used  .'").''(  iV.   10.  Oti.'J. 
WH'   Dillon    Man.   Cori).   88   467,   408.  n  s,,o  §  m^  supra. 

Ak  to   preference  of  union    labor   in 


§674  RESULTING  PKiViLEUEiS.  697 

Privileges  of  this  kind  have,  however,  been  sustained  in  several 
states,  so  m  California  and  ^laryland  the  power  of  medical 
societies  to  appoint  or  elect  medical  examiners,^**  and  in  In- 
diana the  right  of  the  State  Dental  Association  to  appoint  three 
of  the  five  members  of  the  state  board  of  examiners,  on  the 
ground  that  appointment  to  office  is  a  duty  and  not  a  priv- 
ilege.-*^ The  Supreme  Court  of  ^Massachusetts,  in  sustaining 
an  act  which  made  the  right  to  practice  medicine  dependent 
on  a  license  obtained  from  the  State  ^Medical  Society  or  the 
University,  said  that  if  the  power  had  been  confined  to  the 
medical  society  exclusively,  there  might  be  ground  for  doubt, 
but  that  the  difficulty  was  removed  by  the  licensing  power 
being  equally  conferred  upon  the  University.^*'  New  York 
authorises  the  Court  of  Appeals  to  admit  the  graduates  of 
seven  named  law  schools  to  the  practice  of  the  law  without 
examination. 1  All  these  privileges  are  contrary  to  the  prin- 
ciple of  equality.  A  mere  right  of  nomination  or  recommenda- 
tion to  the  executive  for  appointment  is  not  open  to  objection 
in  the  same  degree,  and  the  admission  to  the  practice  of  a  pro- 
fession upon  the  diploma  of  any  institution  complying  with 
certain  requirements  is  not  inconsistent  with  equality  of  right. 

EEVOCABILITY   OF   MONOPOLIES   AND   GRANT    OF    COMPETING 

EIGHTS.     §§  674-681. 

§  674.  Distinguished  from  prohibition  of  business.— The 
power  to  grant  competing  rights  whereby  the  value  of  a  mo- 
nopoly as  such  is  lost,  must  be  distinguished  from  the  power 
to  prohibit  altogether  the  exercise  of  the  right  to  which  the 
monopoly  grant  referred,  so  that  not  only  the  monopolistic 
character  of  the  business,  but  the  business  itself,  is  destroyed. 
The  latter  is  part  of  the  general  question  how  far  under  the 

*8  Ex    parte    Frazer,    54    Cal.    94 ;  tion,  or  where  the  state,  as  the  result 

Scholle  V.  State,  90  Md.  729,  50  L.  E.  of  an   examination   by  its   own   uni- 

A.  411.                                                 '  versity,     grants     special     certificates 

49  Ferner   v.   State,   151   Ind.    247,  -nhich  do  not  confer  exclusive  priAd- 

51   N.   E.   360.      A   similar  bill   was  lege  to  practice    (as  in  the  ease  of 

vetoed    in    Illinois    in    1903,    on    the  certified    public    accountants)     it    is 

ground    that   it   interfered    with   the  difficult   to  make   out  a   case  of  un- 

exeeutive  appointing  power.  constitutional     monopoly,     yet     such 

s^"^  Hewitt     V.     Charier,     16     Pick,  legislation  %-iolatcs  the  spirit  of  the 

353,    1835.      Where    the    examining  principle  of  equality, 

privilege  is  given  to  a  state  institu-  i  Code  Civil  Procedure,  §  58. 


698  SPECIAL  PRIVILEGES.  §  675 

police  power  an  existing  business  may  be  prohibited  or  a  right 
destroyed,  and  may  be  iUustrated  by  the  revocability  of  lot- 
tery privileges.-  As  the  essential  feature  of  a  monopoly  is 
the  exolusiveness  of  the  right,  the  main  (question  with  regard 
to  them  is  whether  this  exclusiveness  may  be  destroyed,  i.  e, 
whether  the  exercise  of  competing  rights  may  be  authorised. 

The  early  grants  of  patents  and  monopolies  under  the  royal 
prerogative  were  nearly  always  limited  to  terms  varying  from 
seven  to  thirty  years  and  generally  contained  a  clause  "that  if 
at  any  time  during  said  term  it  shall  appear  that  such  grant  is 
contrary  to  law,  or  mischievous  to  the  state,  or  generally  in- 
convenient, then  upon  signification  made  by  us  *  *  *  or 
by  six  or  more  of  our  Privy  Council  of  such  prejudice  this  our 
present  grant  shall  be  void.''^ 

The  statutory  sanction  of  patents  and  copyrights  retained  the 
'imitation  to  terms  of  years,  l)ut  did  not  provide  for  powers 
of  revocation.  Patents  and  copyrights  under  the  laws  of  the 
United  States,  as  under  all  other  systems,  are  limited  in  time, 
'uit  during  the  statutory  term  the  exclusiveness  is  of  the 
•.'ssence  of  the  right,  and  cannot  be  taken  away  without  com- 
pensation. 

^  675.  Unequivocal  grant  of  exclusive  character  required. 
—  In  tlif  cjisc  of  franchises  or  monoi)olies  against  common 
right  — assuming  the  exclusion  of  the  general  public  from  the 
exercisr  of  the  riglil  to  1»<'  v.ilid  ;it  least  for  the  time  being, 
as  it  nt'ces.sarily  is  in  .ill  street  franchises  and  as  it  was 
hr\i\  to  ]),■  ill  the  Slauglitei'-ilouse  Cascs,— wc  must  ask,  Urst : 
was  liiere  Mil  intention  expressed  to  secure  the  grantee  against 
Kubse(|iieiit  i-oiiipeting  grants.'  and  second:  was  there  power 
to  bind  ilic  |(ul>lie  against  such  sul)se(|iient  action.?  In  other 
words,  was  it  within  the  |.o\ver  ol"  the  granting  body  to  iiiiike 
n  contract   uniinpairable  iiii(ier  the   rederal   constitution.' 

Til iirts  (leiiiiiml  tli.it  the  exclusive  character  of  the  ur;int 

bf  expressed  in  the  clearest  terms,  evei-y  doiilit  heing  resolved 
nt'ain.st  the  grantee.'  In  tli.'  case  (.1"  ih,.  I '.in-^hiiiiiion  Dridge.f' 
charters  were  grant. •<!  at  the  same  tiiiir  for  a  niiiiiher  of  1/ridges 
to  di(Tcr«-nl  coiii|ianies.     in  the  chai-tcr  to  the  |)ela\var<'  I'.ridge 

'Rinno   V.    .MiMHiHHi|)|ii,    |(i|    (T.    s.  '  <'li;iil,.s    U\\rv  Briil^n'  v.    W.incn 

bl'l;   DoiikIjim  v.  Kentucky.  1(5S  IT.  H  Bri.ljrc,    jj    |',.|.    Mil;    Fall   v.  Suttei 

48H.     H,'c  9  r.Ci'A,  Hupui.  County,  'Jl  C.-il.  237. 

^XFX   Kymcr'H  Foedora,  rm.  o  .-j  W.-iII.  ■'51. 


ij  (i7(l  EEVOCABILITY   OF   .MONOPOLIES.  699 

Company  it  was  expressly  provided  that  it  should  not  be  law- 
ful to  erect  any  bridge  across  the  said  east  and  west  branches 
of  the  Delaware  River  within  two  miles  either  above  or  below 
the  bridge  to  be  erected  under  the  charter.  The  charter  before 
the  Supreme  Court  invested  another  company  authorised  to 
build  a  bridge  across  the  Chenango  River  with  all  privileges 
and  immunities  contained  in  the  foregoing  incorporation  of  the 
Delaware  Bridge  Company;  and  it  was  held  that  this  made 
the  two-mile  prohibition  applicable  to  the  Chenango  River, 
although  that  river  was  not  mentioned  in  the  other  act.  Here 
the  intent  of  the  legislature  was  allowed  to  prevail  over  the 
express  terms,  a  liberality  of  construction  not  to  be  found 
in  later  decisions."  It  has  been  held  that  a  law  prohibiting 
county  courts  from  licensing  a  ferry  within  half  a  mile  from 
an  established  ferry,  did  not  constitute  a  contract,  and  could 
be  repealed  at  any  time,^  that  a  provision  that  county  authori- 
ties shall  not  grant  competing  ferry  rights  does  not  prevent 
the  legislature  from  authorising  a  city  council  to  make  such 
grants,*^  and  that  a  mere  agreement  not  to  grant  rights  or 
privileges  which  will  impair  or  destroy  those  conferred  by 
an  ordinance  giving  a  corporation  permission  to  operate  a 
street  railway  system  in  the  streets  of  a  city,  will  not  prevent 
the  city  from  granting  like  permission  to  others.'-* 

§  676.  Principle  of  strict  construction  justified.— Under  the 
principle  of  strict  construction  the  corporation  applying  for 
the  franchise  (which  usually  submits  the  form  of  the  grant) 
is  compelled  to  make  it  clear  that  it  desires  exclusive  privi- 
leges, and  cannot  derive  any  advantage  from  using  ambigu- 
ous terms  which  it  may  prefer  in  order  not  to  arouse  op- 
position, in  reliance  upon  the  sufficiency  of  those  terms  to 
support  a  claim  of  a  monopoly.  "It  is  a  matter  of  public  his- 
tory which  this  court  cannot  refuse  to  notice,  that  almost  every 
bill  for  the  incorporation  of  banking  companies,  insurance 
and  trust  companies,  railroad  companies,  or  other  corporations, 

6  See  Stein  v.  Bienville  Water  Sup-  '•>  Indiana   Cable   Street   R.    Co.    v. 

ply  Co.,  141  U.  S.  67.  Citizens  Street  R.  Co.,  127  Ind.  369, 

'Wheeling    &    B.    Bridge    Co.    v.  S   L.   R.   A.   .539;    it   seems   the   city 

Wheeling  Bridge  Co.,  138  U.  S.  287;  had  no  power  to   make  the  original 

Williams  v.  Wingo,  177  U.  S.  601.  grant  exclusive. 

'^  Fanning    v.    Gregoire,    16    How. 
523,  534. 


(00 


SPECIAL  PEIVILEGES.  §  677 


is  drawn  origiually  by  the  parties  who  are  personally  inter- 
ested in  obtaining  the  charter ;  and  that  they  are  often  passed 
by  the  legislatnre  in  the  last  days  of  its  session,  when,  from 
the  uatnre  of  our  political  institutions,  the  business  is  unavoid- 
ably transacted  in  a  hurried  manner  and  it  is  impossible  that 
every   member   can  deliberately   examine   every   provision   in 
every  bill  upon  which  he  is  called  on  to  act.     On  the  other 
liami,  those  who  accept  the  charter  have  abundant  time  to  ex- 
amine  and   consider   its  provisions,  before   they   invest   their 
money.     *     *     *     Ami  if  individuals  choose  to  accept  a  char- 
ter ill  which  the  words  used  are  susceptible  of  different  mean- 
ings,—or  might  have  been  considered  by  the  representatives 
of  the  state  as  words  of  legislation  and  subject  to  future  re- 
vision and  repeal  and  not  as  Avords  of  contract,— the  parties 
who  accept  it  have  no  just  right  to  call  upon  this  couct  to 
exercise   its  high  power   over   a  state  upon  doul)tful   or   am- 
biguous words,  nor  upon  any  supposed  equitable  construction, 
or   inferences  made   from   other   provisions   in   the   act  of   in- 
cnrporation.""' 

^  677.  Rival  public  undertakings.  — Where  the  charter  or 
grant  is  silent,  no  covenant  is  implied  on  the  part  of  the  grant- 
ing municipality  that  it  will  not  itself  establish  a  competing 
enterprise,  but  it  will  not  be  allowed  to  tax  the  private  cor- 
poration for  the  payment  of  the  obligations  incurred  in  erect- 
ing the  competing  work.s,  nor  to  discriminate  directly  or  indi- 
rectly in  its  taxation  against  those  citizens  who  do  not  transfer 
their  patronage  to  the  city." 

Where  a  |)owei'  of  .ilteration  oi-  revocation  is  expressly  re- 
servi'd,  its  exercise  li\-  llie  establishment  of  rival  municipal 
works  is  mil  n-iitlrretl  invalid  I)\-  the  hardship  which  i1  inflicts 
ii|»on  the  grantee.'-  Sudi  iiinnifi|i;il  ju-lion  luay  he  a,  violation 
of  faith,  or  i1  nuiy  he  ;i  measure  o|'  seir-|)i-oteetioii ;  it  is  a 
(picstion  t'oi-  ihc  corpoi'al ion  1o  dctei-niine  in  the  first  instance 
wht'tliiT  it   will  jiccept   so   pi-cciirious  ,i   grniit. 

?  678.  Question  of  power  to  make  exclusiveness  a  matter  of 
right.      Whi'ii'    Ihc    iiifciition    to    Lirnnt    .-in    exclusive    IVanchisc! 

•"Dhio    Lifp     ItiHiinincn    &    TniHt  E.  501.',  S.  (J.  184  U.  S.  .3.'J4.     See  mIho 

Co.    V.    Dir-tx.lf,    III    ITi.w.     tUi,     n.'"*,  Xortli  Si.rin^H  Wiitcr  Co.  V.  Taconn, 

436.  L'l   W:isli.  r,17,   17  L.  R.  A.  '214. 

•  •  HkiiiM'iili'IcM  «t«'.  VVjiIit  ' 'ciiii|i:iiiy  '-'  ll.iiniltnii  (Ins  &e.  Co.  v.  llaniil- 

V.  SknncntclcM,  161   .\.  V.   ir.J,  .'55  N.  I..i.,   IKi  U.  H.  258. 


S  (;79  REVOCABILITY  OF  MONOPOLIES.  701 

is  clear  the  question  of  power  arises.  In  the  case  of  iniuiieipal 
corporations  the  power  depends  primarily  upon  the  provisions 
of  the  charter  or  statute  under  which  the  city  acts.  These 
provisions  are  strictly  construed  ;i-'  so  a  power  to  grant  ex- 
clusive track  rights  was  held  to  apply  only  to  streets  specifically 
designated  by  the  council  and  not  to  extend  to  granting  the 
first  right  to  build  in  any  streets  which  the  council  might 
name  in  the  future.^^  In  Iowa  a  power  to  grant  and  refuse 
ferry  licenses  (as  distinguished  from  a  power  to  license  and 
regulate)  was  held  to  authorise  a  grant  under  which  the  city 
binds  itself  to  issue  no  other  license.^  ^  But  where  a  city 
has  merely  power  to  license  the  use  of  streets  for  tracks,  etc., 
the  power  to  grant  exclusive  privileges  will  not  be  implied.i*' 
There  may  perhaps  be  city  charters  or  statutes  which  expressly 
authorise  the  municipalities  to  grant  franchises  and  privileges 
so  as  to  make  them  exclusive  in  a  binding  manner,  but  they 
must  be  extremely  rare,  and  it  is  hardly  conceivable  that  this 
would  be  done  otherwise  than  Avith  a  limitation  to  a  term  of 
years.  A  city  in  granting  a  license  for  water  works  may,  how- 
ever, contract  not  to  establish  within  a  specified  period,  Avater 
works  of  its  own,  since  municipal  competition  Avould  be  prac- 
tically destructive  of  the  private  business.^" 

§  679.  Grant  of  competing  right  as  impairing  the  obligation 
of  a  contract.— The  question  of  the  validity  of  the  grant  of 
competing  rights  in  derogation  of  a  prior  legislative  grant  of 
exclusive  privileges  has  come  before  the  United  States  Su- 
preme Court  under  the  clause  of  the  constitution  forbidding 
laws  impairing  the  obligation  of  contracts.  In  the  case  of  the 
Binghamton  Bridge  Company^  ^^  a  perpetual  bridge  monopoly 
was  held  to  be  a  binding  contract ;  the  New  Orleans  slaughter- 
house monopoly,  granted  for  twenty-five  years,  was  held  to  be 
revocable  before  the  expiration  of  that  time;i''  the  New  Or- 
leans gas  and  water  monopolies,  granted  for  fifty  years,  were 

13  Minturn  V.  Larue,  23  How.  435 ;  548;    Carroll   v.    Campbell,    108    Mo. 

Wright  V.  Nagle,  101  U.  S.  791.  550,    as    to    ferries;    Dillon    §    692, 

1*  Detroit   Citizens'   Street   E.   Co.  Booth,  Street  Eaihvays,  §   108. 
V.   Detroit   Railway,   110   Mich.   384,  i"  Walla   Walla   v.   W.    W.   Water 

S.  C.  171  U.  S.  48.  Co.,   172  U.  S.   1. 

i-"' Burlington    etc.    Ferry    Co.    v.  is  3  Wall.  51. 

Davis,   48   Iowa   133.  i'»  Butchers  Union  v.  Crescent  City 

le  State   ex   rel.   St.   Louis   Under-  &c.  Co.,  1 11  U.  S.  746. 
ground  E.   Co.   v.    Murphy,   134   Mo. 


702  SPECIAL  PKiViLECiElS.  §  680 

held  to  be  secure  against  the  grant  of  competing  franchises.^" 
No  distinction  is  therefore  made  between  perpetual  monop- 
olies and  those  limited  in  lime;  but  the  test  is  whether  the 
grant  relates  to  an  undertaking  which  in  its  nature  cannot 
be  thrown  open  indiscriminately,  or  whether  it  affects  a  busi- 
ness exercisable  as  a  matter  of  common  right,  and  restricted 
only  for  the  real  or  alleged  advancement  of  the  public  health 
or  of  some  other  interest.  In  the  latter  case,  the  exercise  of 
the  police  power  Avhicli  justifies  the  original  restriction  of  i)ri- 
■vate  right,  is  also  held  to  justify  tlic  jibrogation  of  the  re- 
striction at  any  time. 

In  the  ease  of  the  Binghamton  Bridge  i1  was  merely  con- 
tended that  the  legislature  did  not  grant  an  exclusive  fran- 
chise ;  its  power  to  make  such  grant  was  conceded.  Should 
the  state  courts  hold  that  under  the  state  constitution  the 
legislature  is  powerless  to  bind  subsequent  legislatures,  there 
would  be  no  valid  contract;  probably  the  United  States  Su- 
j)reine  Court  would  follow  this  construction  of  the  state  con- 
stitution, although  it  claims  the  power  of  iiuh'pendent  judg- 
ment where  it  is  itself  opposed  1o  the  theory  of  a  contract.-^ 

ii  680.  Louisiana  slaughter-house  and  gas  cases.  — The  Lou- 
isiana slaughter-house  and  gas  company  cases  show  some  fluc- 
tuation or  modilication  ol'  opinion  on  the  ])art  of  the  Sui)i'('nie 
Court.  The  slaughter-houses  cases  sanction  a  monopoly  for 
the  iirot.'ctioii  ol'  ih"  pul)lie  health.  Hie  Butchers'  Union  case 
holds  sui-li  a  iiion(t|)oIy  to  be  i-evocable,  the  gas  company  cases 
sustain  the  irrevocahility  of  a  gas  monopoly.  The  slaughter- 
hou.sc  ca.scs  go  on  the  broad  ground  that  the  Fourteenth  Amend- 
ment alTords  no  ])rotection  against  monopolies,  the  Butchers' 
I'liioii  case  upon  tlir  ground  thai  the  Icgislatui-e  cannot  bar- 
gain away  its  power  to  pi-olcct  piililic  licaltli  or  nioi-als.  llic 
gas  i'oinp;iii\-  cases  on  llir  Lironiid  lliat  the  su|)ply  of  gas  is  a 
public  liusincss  and  inv(»lvcs  tin-  grant  of  IVancliiscs  which 
in  their  nature  cannot  he  (d'  common  rinht.  The  slaughtci-- 
luMise  cMscs  do  not  sug^^cst  thai  a  monopoly  against  common 
right  catuiot   hr  irrevocably  graiMed   \'t)v  a   definite  p(>rio(l.  and 

a'»  New   OrloHiiH  Ctnx   }A^hi   (U,.    v.      iiinny    Wjilcr     Works    Co.    v.    N.    O. 
LouiHiaiiM    l^iyht    &c.    Co.,    ll.T   IT.    S.       W.iUt   Works  Co.,   1 1'O  U.  S.  (i4. 
•  sr.O;   \,.w  OrloaiiH  Wnlcr  Works  Co.  i  l^'rccporl  W:itcr  Co.  v.   Frcoport, 

V.    RivorH,    II.'-,   ir.   S.  (i71;    Ht.   Tain-      IM)  V.  S.  M7,  .19.');   [)oiijrl;,s  v.   Ken- 
tucky, 168  U.  S.  488. 


ij  (j81  liEVUCABiLlTV  OF   MOXOl'OIJKS.  703 

the  grant  there  was  for  a  period  of  twenty-five  years.  The 
Butchers'  Union  ease  says  that  a  wise  policy  forbids  the  legis- 
lative body  to  divest  itself  of  the  power  to  enact  laws  for  the 
preservation  of  health.  Had  the  slaughter-house  monopoly 
endangered  the  public  health,  or  had  the  public  health  re- 
quired additional  slaughter-house  facilities  not  furnished  by 
the  monopoly,  a  case  would  have  been  presented  within  the 
principle  of  Beer  Co.  v.  Massachusetts  and  Stone  v.  Mississippi. 
But  it  was  not  charged,  nor  does  the  opinion  of  the  Supreme 
Court  intimate,  that  the  continuation  of  the  monopoly  was  in- 
consistent with  the  public  health.  The  abrogation  of  the  mo- 
nopoly was  an  economic  and  not  a  sanitary  measure.  The 
decision  of  the  Supreme  Court  means  therefore  that  while  a 
monopoly  against  common  right  can  be  granted  for  police  pur- 
poses, the  Supreme  Court  will  not  recognise  such  a  monopoly 
as  a  contract,  i.  e.  it  is  intrinsically  revocable,  no  matter 
whether  the  revocation  be  demanded  by  the  public  health  or 
not.  This  seems  an  important  modification  of  the  Slaughter- 
House  Cases,  which  do  not  suggest  any  distinction  between  a 
slaughter-house  and  a  bridge  monopoly.  On  the  other  hand, 
where  the  monopoly  is  not  against  common  right,  but  relates 
to  a  public  franchise,  it  may  be  made  exclusive  so  that  subse- 
quent competing  grants  cannot  be  made,  and  this  constitutes 
a  contract.  Such  a  contract  is  subject  to  further  regulations 
in  the  interest  of  health  or  safety,  but  its  total  abrogation  by 
the  grant  of  competing  rights  would,  it  seems,  not  even  be 
justified  by  regard  for  the  public  health  or  safety,  requiring 
a  different  or  additional  supply  of  light;  the  abrogation  even 
for  that  purpose  could  be  accomplished  only  by  the  exercise 
of  the  power  of  eminent  domain. 

§  681.     Perpetual  monopolies  and  monopolies  limited  in  time. 

— In  many  states  the  constitution  is  explicit  that  the  legisla- 
ture may  not  grant  exclusive  privileges  by  special  or  local 
act,  and  in  North  Carolina,  under  the  more  general  constitu- 
tional provision  above  cited,  the  courts  have  held  repeatedly 
that  the  legislature  cannot  create  a  monopoly .22 

As  a  matter  of  general  constitutional  principle,  it  would 
seem  to  be  proper  to  make  a  distinction  between  perpetual  mo- 

--  McKee  v.  Wilmiugtou  &c.  E.  missioners  of  Beaufort,  SI  N.  C. 
Co.,  47  N.  C.  2  Jones  186;  Wash-  491;  Thrift  v.  Elizabeth  City,  ll'L' N. 
ii!gton  &e.   Toll  Bridge  Co.  v.  Com-     C.  ."^l. 


704  SPECIAL  PRIVILEGES.  §  681 

iiopolies  and  those  limited  t(i  a  period  of  years,  A  perpetual 
monopoly  is  unjustifiable  ou  any  consideration,  hence  un- 
reasonable, and  should  be  held  to  be  intrinsically  beyond  the 
])0wer  of  the  legislature  to  grant ;  the  history  of  monopolies 
strongly  supports  this  view.  On  the  other  hand,  if  circum- 
stances justify  the  grant  of  exclusive  privileges,  justice  to 
the  grantee  Avould  seem  to  recpiire  that  in  return  for  his  outlay 
there  should  be  power  to  secui'c  him  in  the  enjoyment  of  his 
])rivilege  for  a  reasonable  length  of  time,  sufficient  at  least  to 
)-eimburse  him  lor  the  capital  invested. 

It  has  already  been  pointed  out  that  the  decisions  of  the 
federal  supreme  court  do  not  support  this  distinction,  and  it 
might  require  constitutional  provision  to  fix  the  length  of  the 
permissible  term.  Our  constitutions  are  with  few  exceptions 
silent  regarding  the  general  validity  of  monopolies ;  perhaps 
the  provision  found  in  a  luimber  of  constitutions  that  the  right 
of  eminent  domain  shall  never  be  so  construed  as  to  ju-event 
llic  legislature  from  taking  the  i)i'oi>er1y  oi-  franchises  of  in- 
eorporated  companies,-''  has  reference  to  exclusive  privileges. 

-^  Pennsylvania,  Illinois,  Nebras-  kansas,  California,  Colo  r  ado, 
ka,     West    Virginia,    Missouri,    Ar-     Georgia,  Alabama. 


CHAPTER  XXXI. 

CLASSIFICATION  AND  DISCRIMINATION. 

§  682.  Statement  of  problem. — Under  the  head  of  particular 
burdens  a  number  of  cases  have  been  discussed  in  which  the 
justification  of  police  legislation  was  questioned  on  the  ground 
that  there  was  not  sufficient  causal  connection  between  the 
right  impaired  and  the  public  danger  sought  to  be  avoided. 
Much  more  frequent  are  the  cases  in  which,  while  this  con- 
nection is  conceded,  it  is  objected  that  the  restraint  is  imposed 
upon  some  while  others  who  are  in  a  similar  position  are  ar- 
bitrarily exempted  from  it.  This  objection  involves  the  ques- 
tion of  the  validity  of  class  legislation,  and,  in  so  far  as  it 
can  be  successfully  maintained,  constitutes  one  of  the  most 
effectual  limitations  upon  the  exercise  of  the  police  power. 
The  legislative  discrimination  which  is  thus  questioned  may 
be  based  on  time,  on  locality,  on  personal  status,  and  on  differ- 
ence of  acts  or  occupations. 

DISCEi:\IINATIOX    BASED    ON    TIME.— EXCEPTIONS     IN     FAVOR 
OF    EXISTING    CONDITIONS.     §§  683-687. 

§  683.  1.  Where  new  measure  amounts  merely  to  regula- 
tion.—It  is  obvious  that  a  restrictive  or  prohibitive  measure 
under  the  police  power  must  operate  verj^  differently  upon 
those  who  have  invested  property  or  acted  otherAvise  in  re- 
liance upon  the  former  condition  of  the  law,  and  those  who 
have  not  yet  committed  themselves  in  this  manner.  The  loss 
and  sacrifice  which  the  measure  entails  upon  the  former  ex- 
ceeds by  far  the  burden  placed  upon  the  latter.  While  an 
exception  in  favor  of  the  former  will  of  course  create  a  dis- 
crimination in  the  operation  of  the  measure,  such  discrimina- 
tion may  be  a  dictate  of  equity,  and  may  even  be  demanded 
by  a  due  regard  for  constitutional  rights.  On  the  other  hand, 
the  exception  should  not  go  further  than  the  equity  of  the  ease 
requires,  or  it  may  become  unconstitutional  inequality. 

The  first  case  to  be  considered  is  where  the  new  measure 
amounts  to  no  more  than  a  regulation  even  as  regards  pre- 
viously vested  interests.  There  is  then  no  doubt  that  it  can 
4"  705 


70H  CLASSIFICATION  AND  DISCRIMINATION.  §  684 

be  eoustitutionally  applied  to  them,  and  an  exception  in  their 
favor  should  be  alloAved  only  if  the  application  of  the  rule 
to  them  produced  special  hardship,  or  where  it  would  impair 
the  obligation  of  existing  contracts.^  Thus  increased  strin- 
gency in  the  regulations  of  liquor  saloons  are  generally  made 
applicable  to  existing  places,  and  are  not  confined  to  those  to 
be  opened  in  the  future,  but  Avhere  the  regulation  refers  to  lo- 
cation, establishments  previousl}^  located  are  properly  ex- 
cepted.2 

The  establishment  of  a  qualification  for  the  practice  of  a 
profession  may  be  such  that  it  can  be  complied  with  by  estab- 
lished practitioners,  and  then  its  retroactive  operation  would 
not  be  unconstitutional;  so  the  Supreme  Court  has  said  that 
the  same  reasons  which  control  in  imposing  conditions  upon 
compliance  with  which  the  physician  is  allowed  to  practice  in 
the  first  instance,  may  call  for  further  conditions  as  new 
modes  of  treating  disease  are  discovered,  and  that  therefore 
a  knowledge  of  the  new  acquisitions  of  the  profession  may  be 
required  for  continuance  in  its  practice.^  In  this  case  physi- 
cians having  had  ten  years'  practice  were  exempt  from  the 
requirement  of  examination,  their  experience  being  regarded 
as  sufficient  evidence  of  (lualificatioii,  and  on  the  like  ground 
the  exemption  of  five  or  ten  years'  practitioners  is  upheld 
in  other  states.^ 

^  684.  Exemption  of  established  practitioners.— It  is  clear 
that  tiif  rf(iiiiitiiieiit  of  an  examination  is  a  hardship  for  any 
eslai)lished  j)raetitioner  very  difi'ei-ent  from  the  same  require- 
MH'Dt  imposed  upon  future  applicants  for  admission,  and  there- 
fore, whether  the  fact  ol"  being  engaged  in  practice  when  the 
statute  is  enacted,  iiTespective  of  length  of  time  of  such  prae- 
iiee,  can  be  regarded  as  a  test  of  fitness  or  not,  it  should  Ix; 
n-Karded  ns  a  suflieient  reason   for  exemption.^' 

The  exenq)tion,  not  <>\'  all  estahlislicj  practitioners,  but  only 
of   those   who    hav<'   b.rn    ."ugaged    in    husiness    for   a   certain 

'  H«'    Ten     Hour     l-aw    f..r    Street  Willijiiiis     v.     People,     iL'l      111.     84- 

Wcilwuy    Corporatu.nH     Mi'.     I.),    .''i  I  St.-it.-  v.    ViiiitlcrHliii.s,  42   Minn.   129, 

'^"-  '■'"-•  (•   I>.    K.   A.   IH);    Kx    |.;nto   Spinney, 

-Hi-   IIiiwkitiH,    Ifj.'i   X.    Y.    1HH,   .')8  10  Nev.  .3L':{. 
^"-   ^'•  HH4.  ■•  Sl:ilr  V.  U;iii(|,,!p|i,   L'!',  (  ),•,.<.,, ii   71, 

•«I).>nt  V.  W.-Ht    Vir«iMi!i,  iL'lt  U.  S.  J7    K.   H.    A.   470;    Fox    v.   T(Mritory, 

"••  2   Wnsli.    T.    L'07;    St.-i1..   v.    Cr.MlituV, 

♦Stiito  V.  Hnfliiiw.'ty,   ]]r,  Mo.  .'{(i ;  44  Kan.  4(]r,. 


§  685  EXCEPTIONS  BASED  Ox\  TIME.  707 

number  of  years,  has  something  arbitrary  in  it,  and  has  been 
condemned  by  the  Supreme  Court  of  Ohio  as  class  k^gislation." 
But  if  prolonged  practice  may  be  taken  as  proof  of  experience, 
it  is  necessary  to  fix  upon  a  certain  number  of  years,  and  this 
kind  of  arbitrariness  is,  as  has  been  pointed  out  before,  in- 
evitable in  a  police  regulation.  If  the  exemption  must  come 
down  to  the  date  of  enactment,  the  state  is  powerless  to  pre- 
vent an  evasion  of  the  act  on  the  part  of  those  who  begin  prac- 
tice in  contemplation  of  the  new  laAV  and  in  order  to  escape 
its  requirements. 

The  policy  of  legislation  as  to  established  practitioners  is 
not  uniform;  in  Illinois  in  the  same  year  an  act  was  passed 
requiring  licenses  for  architects  upon  examination,  excepting 
those  already  practicing  the  profession,  and  also  an  act  re- 
quiring examination  of  "any  person  now  or  hereafter  en- 
gaging in  or  working  at  the  business  of  plumbing.''"  In  New 
Hampshire  it  was  held  unconstitutional  to  exempt  existing 
practitioners  not  merely  from  the  requirement  to  establish 
their  qualification,  but  also  from  the  payment  of  the  fee  exacted 
from  all  others,  the  latter  point  being  controlling,^  or  to  exempt 
by  reason  of  the  accidental  circumstance  of  residence  or  non- 
residence  in  the  same  town.^ 

§  685.  2.  Where  new  regulation  is  destructive  of  vested 
interests. — The  second  class  of  cases  requiring  consideration  is 
that  in  which  a  measure  which  in  its  prospective  operation  is 
merely  a  regulation,  becomes,  when  applied  to  vested  interests, 
prohibition  or  taking  of  property.    So  if  a  law  regulating  the 

«  Harmon  v.  State,  66  Oh.  St.  249,  181  III.  73,  54  X.  E.  646,  50  L.  R. 

64  N.  E.  117,  58  L.  E.  A.  618.  A.  519,  where  the  exemption  bv  the 

~  Laws  1897,  p.   81   and  p.  279.  legislature  of  law  students,  who  had 

s  State  V.  Pennoyer,  65  N.  H.  113.  commenced  their  studies  at  the  time 

18  Atl.  878,  5  L.  R.  A.  709.  certain   new   rules  regarding   admis- 

9  State  V.  Hinman,  65  N.  H.  103.  sion    to    practice    went    into    effect, 

If   existing   practitioners   are   not  from   the   operation   of   those   rules 

exempted,  it  must  be  asked :    Who  is  was   treated   as    arbitrary   classifica- 

to  examine  the  members  of  the  ex-  tion.      However,    this    was    not    the 

amining  board?     The  very  fact  that  main   ground    for   holding   the   stat- 

Ihey     by     implication     are     exempt  ute  unconstitufional,  the  chief  argu- 

raises  a   serious   question   as   to   the  ment  being,  that  the  act  constituted 

constitutionality   of   the    acts    which  a  legislative  encroachment  upon  the 

fail    to    exempt    all    other    existing  constitutional    independence    of    the 

practitioners.  judicial  power. 

See,   also,  in   the   matter   of   Day, 


708  CLASSIFICATION  Ai\D  DlSCElMixNATIOX.  §  G8G 

practice  of  medicine  should  require  a  four  years'  course  in  a 
medical  college  without  accepting  another  test;  existing  prac- 
titioners could  practically  not  comply  with  this  requirement, 
and  if  it  were  applied  to  them,  it  would  oust  them  from  the 
practice  of  their  profession;  this  would  be  clearly  unconsti- 
tutional. Thus  the  establishment  of  fire  limits  within  which 
frame  buildings  are  forbidden  is  a  regulation  as  applied  to 
vacant  property,  while  as  to  existing  frame  houses  it  would 
be  a  taking  of  property;  hence  the  exemption  of  such  houses 
is  not  only  not  contrary  to,  but  is  demanded,  by  the  con- 
stitution.^" 

§  686.  3.  Where  new  measure  amounts  to  prohibition.— 
The  third  class  of  cases  is  where  the  police  measure  exceeds 
the  scope  of  regulation,  and  amounts  to  prohibition.  Retro- 
active prohil)ition  means  in  most  cases  the  taking  or  economic 
destruction  of  property,  but  wdiile  it  resembles  the  second 
class  of  cases  in  this  respect,  it  differs  from  that  class  in  two 
other  respects:  the  policy  of  prohibition  implies  an  evil  or 
danger  of  exceptional  magnitude,  and  any  exception  not  merely 
allows  a  partial  perpetuation  of  the  evil  or  danger,  but  in 
addition  may  give  to  those  excepted  a  monopoly  instead  of 
a  mere  advantage.  It  has  been  sjiown  before  that  retroactive 
prohibit  ii)ii  witliout  compensation  is  constitutional,  although 
the  granting  of  compensation  has  never  been  held  unconsti- 
tutional;  the  demands  of  e(iuity  might  therefore  always  be 
satisfied  by  compensation ;  the  question  here  to  be  considered 
is  whether  if  compensation  is  not  intended  the  law  may  con- 
stitutionally except  vested  interests  from  the  prohibition. 

!;  687.  Exception  in  favor  of  existing  rights.— In  Illinois  it 
has  bfcn  lield  that  a  nuniicipal  charter  power  to  direct  the  lo- 
cation and  iiianagement  of,  and  to  regulate  and  prohibit, 
Hhnightering  establislunents  within  tlie  city,  could  not  lie  so 
exerelHcd  as  1o  pi-dhihit  only  the  future  erection  of  slaughter- 
houses." The  court  laid  down  the  principle  in  rathei-  sweep- 
mn  terms:  "If  it  prohibited  one  from  carrying  on  llic  husi- 
iie.sK  that  prohil)ition  should  extend  to  all  regardh^ss  of  the 
tiiiif  the  Inisiness  Diay  have  been  commenced."  But  it  should 
bf  nf>t<'(l  tliJit  in  this  case  the  regulatioji  emanated  from  the 

>"  WiullpiKh  V.  Oilmnn,  12  Mc.  40.3.         "  Tiifrmiin  v.  ChieaRO,  78  111.  405. 


§087  EXCEi'TlU.XS  BASED  ox   TIME.  701) 

board  of  health,  while  the  power  of  regulation  belonged  only 

to  the  city  council,  so  that  there  was  an  independent  ground 
of  illegality.^  2 

In  Massachusetts  the  municipal  power  to  prohibit  was  ex- 
pressly confined  to  the  future  erection  of  noxious  establish- 
ments.^'* There  must  be  many  cases  in  which  it  is  the  undue 
multiplication  of  noxious  establishments  which  creates  the 
sanitary  danger,  and  in  which  the  district  to  which  the  pro- 
hibition applies  is  not  large  enough  to  give  to  the  existing 
establishments  which  are  suffered  to  continue,  a  virtual  mo- 
nopoly of  the  business :  in  such  cases  there  can  be  no  reasonable 
objection  to  the  policy  of  exemption.  Where  the  effect  of  the 
exemption  is  that  the  evil  will  not  be  sensibly  abated,  but 
simply  be  made  more  profitable  to  those  who  are  pursuing  it, 
the  inequality  of  operation  may  constitute  a  fatal  defect.  Thus 
an  act  of  New  Jersey  passed  in  1893  created  very  onerous  con- 
ditions for  licensing  race  courses  established  after  January  1, 
1893,  while  those  previously  established  were  allowed  to  operate 
under  a  much  more  liberal  licensing  system.  This  was  held 
to  be  unconstitutional  discrimination.^^ 

In  San  Francisco  an  ordinance  w^as  passed  prohibiting  the 
future  acquisition  or  disposition  of  any  land  for  purposes  of 
interment,  but  allowing  interments  to  be  made  in  lots  already 
purchased  for  that  purpose  for  the  use  of  the  owners  and 
their  families.  This  was  held  illegal  as  discriminating  in 
favor   of  those   who   had   already   purchased   burial   plots  as 

12  In  Crowley  V.  West,  52  La.  Ann.  j  ination   and   was   unreasonable;    but  |\ 

526,  47  L.  E.  A.  652,  the  City  Coun-  it  was  also  held  that  the  charter  of 

cil  required  all  livery  stables  to  be  the  city  did  not  give  it  power  to  ex- 

eiected   after   passage    of   the   ordi-  elude   livery   stables   from   any   por- 

nance  to  be  located  outside  of  a  des-  tion  of  the  city. 

ignated    district    comprehending   the  In  Kentucky  it  has  been  intimated 
business  portion  of  the  city.     At  the  that  the  exemption  of  persons  own- 
time  there  were  in  that  district  four  ing   liquor   at    the   time    of   the   en- 
livery     stables;     ground     had     been  aetment  of  a  statute  forbidding  its 
purchased  for  the  erection  of  a  fifth  sale    at    retail    in    certain    localities 
one.     The  owner  of  the  ground  after  would       be       unconstitutional       dis- 
the   passage    of   the    ordinance   pro-  crimination ;     Stiekrod    v.    Common- 
ceeded    to    erect    the    stable    in    the  wealth,  86  Ky.  285,  5  S.  W.  580. 
prohibited     district,     and     contested  i-'?  General  Statutes,  ch.   80,  §   92; 
the   right    of   the   city   to    treat   his  see  now  Rev.  Laws,  ch.  75,  §  108. 
stable  as  a  nuisance.     It  was  held  i-t  State  v.  Elizabeth,  56  N.  J.  L, 
that    the    ordinance    under    the    cir-  71,  23  L.  E.  A.  525, 
cumstances  made  an  unjust  discrim- 


710  CLASSIFICATION   AND   DlSCKlAJlNATiON.  §  (,88 

against  those  who  had  not.^-"'  It  appeared  that  the  effect 
of  the  ordinance  would  have  been  to  deprive  a  cemetery  asso- 
ciation of  the  right  to  dispose  of  its  unsold  lots,  w^hile  at  the 
same  time,  under  the  terms  of  the  ordinance,  a  very  much 
larger  portion  of  the  cemetery  already  disposed  of  would 
have  continued  to  be  available  for  burial  purposes.  Here  then 
the  exception  in  favor  of  existing  rights  was  only  partial, 
in  that  it  ignored  the  vested  interest  of  the  cemetery  associa- 
tion, and  at  the  same  time  Avas  so  far-reaching  as  to  nullify 
almost  the  beneficial  effect  of  the  ordinance. 

As  a  matter  of  constitutional  and  statutory  policy  it  would 
seem  to  make  a  great  difference  Avhether  the  continuation  of 
existing  conditions  will  be  temporary  or  perpetual.  In  the 
case  of  licenses  to  practice  professions,  the  period  of  exist- 
ing lives  is  the  limit  of  inequality;  on  the  other  hand  the 
exemption  of  existing  corporate  rights  may  create  a  perpetual 
privilege  or  monopoly.  Where  existing  frame  houses  are  ex- 
cepted from  the  operation  of  new  building  regulations,  the 
law  often  forbids  repairs  when  the  damage  amounts  to  more 
than  a  certain  proportion  of  the  original  value ;  and  thus 
a  gradual  disappearance  of  such  houses  is  practically  assured. 
The  power  of  eminent  domain  is  of  course  always  available  for 
the  abrogation  of  vested  rights. 

DISCRIMINATION    BETWEEN   LOCALITIES.      §§    688-690. 

ii  688.  Constitutional  provisions.  — In  the  case  of  ^Missouri 
V.  Lewis,'"  the  Supreme  Court  decided  that  the  equal  protec- 
tion clause  of  the  Fourteenth  Amendment  does  not  prevent  the 
application  of  different  rules  to  different  local  divisions  of  the 
state.  "It  contemplates  persons  and  classes  of  persons.  It 
has  not  respect  to  local  and  nninicii)al  regulations  that  do  not 
injuriously  alVect  oi-  discriminate  between  persons  or  classes 
nf  persons  within  the  places  or  nuniicipalities  for  wdiich  such 
reguhitions  are  made.''  in  the  case  before  the  court  a  difTer- 
enoe  was  made  in  the  right  ul"  .ippciil  IVoin  the  courts  of  certain 
counties  of  the  state  and  those  of  the  rest  of  the  state.  It  was 
held  that  the  state  was  free  to  establish  different  systems  of 
courts  for  (liffej'cnt  portions  of  its  territories,  and  might  even 
place  th<!ii  under  different  systems  of  laws.     The  same  opinion 

'f-  Mnttor  of  Roh.Mi.    II.'",  C-il.   .17L',  "i  ]()1  IT.  H.  22,  1880. 

36  1,.  H.  A.  r.lH. 


§  688  DISCKIMINATION  BETWEEN   LOCALITIES.  711 

had  been  briefly  expressed  in  Munn  v.  Illinois,^"  and  later  in 
Budd  V.  NcAV  York,!"*  where  the  statute  in  question  applied  only 
to  certain  cities. 

It  is  clear  that  unequal  treatment  of  localities  may  work 
injustice  and  oppression  as  well  as  the  unequal  treatment  of 
individuals  or  classes.  The  abuses  of  special  or  local  legislation 
have  led  to  the  constitutional  prohibition  of  such  legislation 
in  a  number  of  enumerated  matters  in  many  states,  and  in  a 
number  of  constitutions  we  find  the  general  provision  that  all 
general  laws  or  laws  of  a  general  nature  must  be  uniform  in 
their  operation  throughout  the  state.  And  even  without  such 
provision  circumstances  may  stamp  local  legislation  as  uncon- 
stitutional discrimination.^  ^ 

It  is  not  intended  by  such  a  provision  to  make  all  regula- 
tions of  a  local  character  impossible;  but  the  legislature  may 
undoubtedly  by  uniform  laws  vest  powers  of  local  regulation 
in  local  authorities,  which  power  may  be  unequally  exercised 
according  to  the  varying  needs  of  different  localities.  The 
principle  of  local  self-government  is  then  supposed  to  give  an 
adequate  protection  to  local  interests.  There  remains  the  pos- 
sibility of  abuse  in  the  creation  of  local  divisions,  determining 
their  boundaries  in  such  a  manner  as  to  tie  together  conflicting 
interests,  and  give  preponderance  to  one  over  the  other.  This 
may  be  prevented  to  some  extent  by  making  annexation  of  one 
locality  to  another  dependent  upon  a  vote  of  the  inhabitants  af- 
fected;  but  where  this  method  cannot  be  or  is  not  pursued, 
great  injustice  may  be  done,  especially  through  unequal  distri- 
bution of  the  benefits  of  public  improvements,  without  any  re- 
lief through  the  courts.^^     The  system  of  local  assessments  for 

17  94  U.  S.  113.  teld  unconstitutional  as  special  and 

18 143  U.  S.  517.  local    legislation    because    applying 

10  "We  do  not  say  that  there  may  only  to  localities  of  a  certain  popula- 

not  be  local  legislation,  for  it  is  very  lion.      Bessette    v.    People,    193    111. 

common    in    our    statute    books,    but  334,  62  X.  E.  215,  56  L.  E.  A.  558. 

that  an  act  divested  of  any  peculiar  Discrimination    between    cities    and 

circumstances,   and  per  se  made  in-  country   districts   in    the   matter    of 

dictable  should  be  so  throughout  the  selling  liquor  has  been  sustained  in 

state    as    essential   to    that    equality  South  Carolina,   State  v.  Berlin,   21 

and    uniformity    which    are    funda-  B.  C.  292,  53  Am.  Eep.  677. 
mental    conditions    of    all    just    and  20  Kelly  v.   Pittsburgh,   104  U.  S. 

constitutional  legislation."    State  v.  78.      See    State    v.    Minnetonka,    57 

Divine,  98  N.  C.  778,  1887.  Minn.  526,  25  L.  E.  A.  755. 
The  Illinois  horseshoers'  act  was 


71:?  CLASSIFICATION  ^VXD  DISCEiMIXATlON.  §  689 

special  benefit  affords  in  tlie  matter  of  public  improvements 
a  partial  remedy,  which  is,  however,  without  constitutional 
guaranty. 

§  689.  Discrimination  in  location  of  noxious  establishments. 
—  In  the  exercise  of  the  police  power  discriminations  between 
different  parts  of  the  same  municipality  are  especially  possible 
in  the  licensing-  of  noxious  establishments.  There  is  inequality 
as  a  matter  of  fact  between  different  neighborhoods  of  the  same 
city,  there  are  residence  districts  and  factory  districts.  Are 
llie  public  authorities  debarred  from  considering  these  actual 
and  inevitable  differences  for  the  sake  of  an  abstract  principle 
of  equality,  which  would  in  fact  operate  very  unequally?  In 
Illinois  an  ordinance  was  upheld  which  made  the  erection  of  a 
!ivery  stable  in  residence  streets  dependent  upon  the  consent 
of  adjoining  owners;  but  the  case  turned  upon  the  point 
whether  the  license  might  be  made  to  depend  upon  a  vote  of 
..he  locality,  and- the  discrimination  between  "residence  and  other 
•  iistriets  was  without  argument  assumed  to  be  legitimate.-^ 
Such  a  distinction  seems  very  reasonable,  but  great  difficulties 
iinist  be  felt  where  a  municipality  undertakes  to  confine  houses 
of  ill-fame  to  certain  streets.  Such  a  regulation  has  been 
upheld  ill  Louisiana,  and  has  been  confirmed  by  the  Supreme 
Court  of  the  Tnited  States  as  not  violating  any  federal  right, 
but  in  that  case  the  houses  in  the  designated  district  were  not 
legalised.-^  The  opinion  goes  very  far  in  sanctioning  the  le- 
gality of  local  discrimination  in  the  matter  of  nuisances. 

i^  690.  Discrimination  to  be  justified  by  local  conditions.— 
Where  (liseriuiination  on  the  part  of  railroad  companies  be- 
tween different  individuals,  associations  and  corporations  was 
made  illeg.-il,  it  was  held  that  this  had  no  application  to  different 
iinniicipal  eor|)orations;  aiul  it  is  clear  that  absurd  conse- 
quences would  arise  from  insisting  ui)on  e(iual  treatment  of 
id!  |)lnpes  hy  railroad  eoiiii.anies.2-'»  The  principle  of  ecpiality 
would  seem  to  deiMMii:!  that  local  discriminations  should  be 
jUHtjfied  by  ;iiid  correspond  lo  dilTerent  local  conditions,  hut 
sho\jld  not  be  based  up<in  distinctions  discountenanced  by  the 
coiiHtittition  or  by  the  policy  of  the  law.     That  local  discrim- 

•••«  ChiniBo  V.  SfnUfoii,  102  III.  |!t|.         •-'.■•  Tiittic  K'.xk  &  Ft.  Sm.  B.  Co.  v. 

•  '  l/n..ff  V.  New  OrlwiiiH,  r,\    La.     Oppciiliuimer,  64  Ark.  271. 
Ann.  m,  \i  T..  T?.  A.  HO,  «.  C.  177  U. 
y--  '*<7;  sec  9  179,  ante. 


§  691  DISCRIMINATION  ON  13A«1S  u/   STATUS.  713 

inatioD  might  violate  the  Fourteenth  Amendment  was  inti- 
mated by  the  Supreme  Court  in  Missouri  v.  Lewis,  above  cited : 
"It  is  not  impossible  that  a  distinct  territorial  establishment 
and  jurisdiction  might  be  intended  or  might  have  the  effect 
of  a  discrimination  against  a  particular  race  or  class,  where 
such  race  or  class  should  happen  to  be  the  principal  occupants 
of  the  disfavored  district.  Should  such  a  case  ever  arise,  it 
will  be  time  enough  then  to  consider  it."  But  the  Supreme 
Court  has  held  that  oppressive  regulations  regarding  laundries 
confined  to  a  certain  district  were  not  contrary  to  the  Four- 
teenth Amendment,  local  discrimination  being  a  legitimate  inci- 
dent to  the  exercise  of  the  police  power.^^  It  was  said  in  the 
later  ease  of  Tick  "Wo  v.  Hopkins,^^  that  the  Barbier  ease  had 
no  element  of  invidious  discrimination  against  the  Chinese. 

DISCRIMINATION  BASED  ON  PERSONAL  STATUS.     §§  691-720. 

RACE.     §§  691-700. 

§  691.  Indians,  Chinese,  and  free  negroes  before  the  Four- 
teenth Amendment.— "While  differences  of  nationality  and  re- 
ligion have  on  the  whole  been  ignored  by  American  legislative 
policy,  the  relations  between  different  races  have  given  rise  to 
problems  of  considerable  importance.  Until  recent  times  the 
principal  non-European  races  with  which  the  American  peo- 
ple have  come  in  contact,  have  been  the  Indian,  the  Chinese  and 
the  African.  The  status  of  the  Indians  who  have  been  treated 
as  wards  of  the  nation,  subject  to  manifold  restraints,  need 
not  be  considered  here.  The  Chinese  being  incapable  of  nat- 
uralisation have  always  remained  aliens  and  their  constitutional 
status  is  therefore  determined  by  principles  to  be  discussed 
later  on.  Where  statutes  or  ordinances  speak  of  Chinese, 
they  must  be  understood  as  referring  to  subjects  of  the  Em- 
peror of  China,  and  not  of  Chinese  born  in  the  United  States, 
who  as  citizens  are  exempt  from  discriminating  legislation. 2« 
The  legal  status  of  free  negroes  until  the  passage  of  the  Four- 
teenth and  Fifteenth  xVmendments  was  admittedly  that  of 
an  inferior  and  dependent  race;  the  Supreme  Court  of  the 
United  States  held  them  incapable  of  acquiring  United  States 
citizenship  f^  in  a  number  of  states  their  immigration  was  pro- 

24  Barbier  v.  Connolly,  113  U.  S.  20  United  States  v.  Wong  Kim 
27.                                                                    Ark,  169  U.  S.  649. 

25  118  U.  S.  356.  -'  Dred  Scott  v.  Sanford,  19  How. 

393. 


714  CLASSIFICATION  AiSID  DISCEIMIAATION.  ^  tj92 

hibited,-^  and  they  were  in  other  respects  subjected  to  discrim- 
inating legislation. 29 

§  692.  Fourteenth  Amendment.  —  The  Fourteenth  Amend- 
ment gave  the  negro  the  privilege  and  immunities  of  United 
States  citizenship,  and  guaranteed  to  him  the  equal  protection 
of  the  laws.  It  was  clearly  the  policy  of  the  framers  of  the 
Fourteenth  Amendment  to  protect  the  negro  against  oppressive 
legislation,  but  hardly  to  place  him  on  a  plane  of  perfect 
equality  with  the  whites.  It  required  a  separate  amendment 
to  secure  the  negro  against  discrimination  on  account  of  his 
race  in  the  matter  of  suffrage.  Xo  explicit  provision  was 
made  as  to  his  right  to  hold  office,  but  a  law  excluding  negroes 
from  jury  service  was  held  unconstitutional,  as  denying 
the  equal  protection  of  the  law  to  a  colored  man  Avhen  he  is 
put  upon  trial  for  an  alleged  offense  against  the  state. 3"  It 
has  been  held  in  Maryland  that  negroes  may  be  excluded  from 
the  practice  of  the  law.-"  It  seems,  however,  that  this  and 
similar  discriminations  are  Avithin  the  i)rohibition  of  the  Four- 
teenth Amendment  as  interpreted  in  Strauder  v.  West  Virginia. 

ji  693.  Federal  civil  rights  legislation.  — In  the  so-called 
Civil  Rights  Cases-*-  the  Supreme  Court  of  the  Tnited  States 
dccidt'd  that  the  Fourteenth  Amendment,  being  intended  as 
a  prohibition  upon  the  states,  authorised  congressional  legisla- 
tion only  in  so  fai-  ;is  its  purpose  would  Ix'  to  ruforce  this 
prohibition;  that  therefore  Congress  might  legislate  to  af- 
ford redress  against  discrimination  or  abi-idgment  of  rights  oi- 
unequal  treatment  on  the  part  of  the  state  or  under  color  of 
state  aiithorit\-.-'-'  l)nt  could  not  dii-cctly  pt-csciMl)!^  rules  for 
jM-ivatc  action.  It  was  consciiucnt ly  licld  tliat  an  act  of  Con- 
jrress  providing  that  all  jxM-sons  regardless  of  race  or  color 
should    bt'   entitled    to    thr    full    nnd    ((lual    enjoyment   of   the 

•-'«  Pori<lIi-t..ii  V.  Stato,  (]  Ark.  oOO;  -'>  Slraiidor  v.   West   Virginia,    100 

Hljitf  V.  Claiboriic,  li»  Toiiii.  (.Moijjs)  U.  S.  IMli. 

:V.i]  ;  Hilt  wood  V,  State,  18  [nd.  492;  •'»  Ro  Taylor,  48  Md.  28, 

NclHon   V.   IVoi)l<',   nn    m.   .lltO.     See  -la  109  U.  S.  1,  1883. 

I.rf««'i)t  conHfiliifiiiii  i.f  ()rc^r„ii,  Art.  'i'' Kx    parte    Virginia,    100    U.    S. 

I.   i   .'!.'»,  retaining  liie  old   provision.  ;?39.     See   People   v.   T^rady,   40   (.'al. 

a<»8tate   v.    Mnnuiil,   20    N.   C.    (4  198,  mistaining  a   l.iu    inc-ipacitating 

Di-v.    &    nnt.)     20;     African    M.     Iv  fn.Iians  :iiid    Mongolians    (loiii    testi- 

''hurrh  v.  Now  Orlt-anH,   1.''.  ].:i.  Ann.  fying   in   criminal   cases  in    favor  of 

t41;  *n'i\  howfvcr.   .McinphiH  v.   Win-  or    against    white    persons,    notwitli- 

Add,  H   MnniphreyH   (27  Tcnri.)   707.  standing  the  14tb  Amt.  But  it  seems 


§  (j94  RACE.  715 

accommodation  of  public  conveyances  antl  places  of  amuse- 
ment was  not  authorised  by  the  constitution,  since  it  attempted 
to  forbid  discrimination  not  exercised  under  color  of  state 
authority. 

The  amendment  has  further  been  construed  to  the  effect  that 
Congress  cannot  provide  for  the  punishment  of  a  conspiracy 
on  the  part  of  individuals  to  deprive  a  person  of  the  equal 
protection  of  the  laws  or  of  equal  privileges  and  immunities 
under  the  laws,  or  to  prevent  or  hinder  state  authorities  from 
giving  or  securing  to  all  persons  within  the  state  the  equal  pro- 
tection of  the  kvvs;^^  but  may  provide  for  the  punishment  of 
a  conspiracy  to  injure,  oppress,  threaten  or  intimidate  a  person 
in  the  free  exercise  or  enjoyment  of  any  right  or  privilege 
secured  to  him  by  the  constitution  or  laws  of  the  United 
States.35 

§  694.  State  legislation  forbidding  discrimination.— The 
substance  of  the  federal  law  declared  unconstitutional  in  the 
Civil  Rights  Cases  is  embodied  in  the  statutes  of  some  Northern 
states,^^  which  provide  that  no  person  shall  be  denied  the  full 
and  equal  enjoyment  of  the  accommodations,  advantages,  fa- 
cilities and  privileges  of  all  hotels,  inns,  taverns,  restaurants, 
public  conveyances  on  land  or  water,  theatres  and  other  places 
of  public  resort  and  amusement,  because  of  race,  creed  or 
color.2'  The  constitutionality  of  provisions  of  this  character 
has  been  upheld,^^  except  when  their  operation  cannot  be  con- 
fined to  one  state,  but  necessarily  affects  interstate  commerce. 
Thus  a  statute  forbidding  the  separation  of  the  two  races 
on  steamboats  within  the  state  is  unconstitutional  in  so  far  as 
it  will  deprive  the  passenger  coming  from  without  the  state  of 
the  privilege  of  separate  accommodation. •^■' 

§  695.     Discrimination  apart  from  statute.  — It  will  be  noted 

clear  that  the  protection  of  the  crim-  liod     similar     statutes     existed     in 

inal    law    does    not    operate    equally  Southern   states.      Donnell    v.    State, 

vrhere  a  white  man  is  assaulted  by  a  48  Miss.  661 ;  Joseph  v.  Bidwell,  28 

Chinese,  and  where  a  Chinese  is  as-  La.  Ann.  382. 

saulted  by  a  white  man.  3' New   York   Penal   Code,   §   383; 

s-tU.  S.  Rev.  Stat.  §  5519;  United  Illinois    Criminal    Code,    42    i-r;    in 

States  V.  Harris,  106  U.  S.  629.  some  statutes  the  use  of  cemeteries 

35  United  States  Revised  Statutes,  is  included. 

S  5508;  Ex  parte  Yarbrough.  110  U.  •■><  people  v.  King,  110  X.  Y.  418, 

8.   651;    United   States   v.    Waddell,  1888;  Baylies  v.  Curry,  128  111.  287. 

112  U.  S.  76.  39  Hall  v.  De  Cuir,  95  U.  S.  485. 

3c  During    the    reconstruction    pe- 


716  CLASSIFICATION  AND  DISCEIMINATION.  §  695 

that  these  statutes  regulate  the  proprietary  control  of  private 
property  which  is  in  other  respects  subject  to  a  strong  exercise 
of  the  police  power,  and  which  according  to  prevalent  opinion 
either  by  common  law  is,  or  by  statute  may  be  made,  subject 
to  the  duty  of  fair  and  equal  service  to  the  public.  The 
common  law  duty  of  carriers,  innkeepers,  etc.,  is  to  furnish 
accommodation  impartially  to  all  who  may  apply  and  pay 
therefor,  provided  they  are  not  personally  obnoxious  by  reason 
of  disease,  intoxication  or  other  offensive  personal  condition. 
That  the  more  fact  of  color  cannot  under  our  constitutions  be 
regarded  asmaking  a  person  in  a  legal  sense  objectionable, 
must  be  elear.-^'^  Provided,  however,  that  accommodation  is  af- 
forded, and  that  the  accommodation,  though  differing  according 
to  the  price  charged  is  equal  for  all  who  are  willing  to  pay  the 
same  price,  the  common  law  duty  of  equal  service  is  held  to 
be  satisfied,  although  there  be  separation  according  to  race, 
setting  aside  dift'erent  coaches  and  waiting  rooms  of  railroads, 
and  different  portions  of  theatres,  for  each  of  the  two  races.^^ 
Such  separate  accommodation  does  not  answer  the  require- 
ments of  the  Civil  Rights  Acts.-*^  These  statutes,  therefore, 
increase  the  burden  of  the  common  law,  and  there  should  be 
some  justification  for  this.  The  courts  which  sustain  the  stat- 
utes hold  in  eff'ect  that  it  is  a  legitimate  exercise  of  the  police 
power  to  prohibit  any  method  of  regulation  of  places  of  public 
resort  Avliich  prevents  the  free  commingling  and  association  of 
the  two  races,  and  which  accentuates  the  condition  of  in- 
feriority of  the  one  race.  The  statutes  are  regarded  as  ap- 
propriate measures  to  elevate  an  oppressed  race,  and  to  relieve 
it  from  the  stigma  of  degrading  discrimination.^^  There  is 
no  <,'ood  reason  why  the  power,  if  recognised  at  all,  should  be 
confint'd  to  those  classes  of  business  which  happened  to  be 
tn-atrd  ])y  tlic  common  law  as  common  or  public,  and  the  ex- 
tension of  llif  rc(|niromonts  of  the  civil  rights  acts  to  restaur- 
ants or  harlicr  shops  is  constitntional."*"'  The  practical  difficulty 
of  cnforcinir  requirements  of  this  nature  is  a  strong  safeguard 

«<>CliiraK.)  &  N.   W.  R.  li.  Co.  v.  bnliun,   .38  S.   C.   5129,   19 -L.   R.   A. 

WilliamH,  .').'»   III.   185.  7J0;  Bowie  v,  Biriniiiphani  Railway 

♦  1  Wr'MtchoHfor  &c.  R,  Co.  v.  MiloH,  Co.,  125  Ala.  397,  50  T..  R.  A.  032. 
55  Pa,  St.  209;   YouTiRor  v.  Judah,         42  Baylies  v.  Curry,  128  111.  287; 

111   Mo.  303,  in  L.  R.  A.  558;  Cliil-  Dontirll   v.   State,  48  Miss.  GGl. 
ton  V.  Ht.  Iv.  &  I.  M.  R.  Co.,  114  \Tn.  •»-.  People  v.  King,  110  N.  Y.  418. 

88,  19  L,  R.  A.  269;  Smith  v.  Cham-         ■«4  Ferguson  v.  Gies,  82  Mich.  358; 


§(3% 


SEPARATION  OF  RACES.  717 


against  their  undue  extension.    It  is  believed  that  these  statutes 
have  never  been  enforced  except  in  sporadic  instances. 

§  696.  Compulsory  separation.— The  separation  of  the  two 
races  by  state  authority  represents  a  policy  opposite  to  that 
of  the  civil  rights  legislation.  Such  separation  is  attempted 
to  be  enforced  in  three  directions:  in  marriage,  in  education, 
and  in  the  accommodations  of  public  conveyances. 

§  697.  a.  Miscegnation.— The  la\YS  of  a  number  of  states 
prohibit  marriages  between  white  persons  and  negroes  or 
persons  of  more  than  a  stated  proportion  of  African  blood  ;^^ 
in  some  states  the  prohibition  is  made  by  the  constitution.  With 
the  exception  of  one  case,  which  was  subsequently  overruled,'*^ 
the  state  and  federal  courts  have  uniformly  sustained  the  va- 
lidity of  this  prohibition.'*'  The  Supreme  Court  of  the  United 
States  has  not  had  occasion  to  pass  upon  this  question;  but 
it  has  sustained  a  law  punishing  illicit  sexual  intercourse  be- 
tween white  and  colored  persons  more  severely  than  the  same 
offense  between  persons  of  the  same  race,  saying  that  where 
the  same  pimishment  is  meted  out  to  both  offenders,  the  white 
and  the  black,  there  is  no  discrimination.^s  By  the  same  argu- 
ment, it  would  probably  refuse  to  see  any  discrimination  in 
the  prohibition  of  intermarriage;  and  in  Plessy  v.  Ferguson^^ 
the  prohibition  of  intermarriages  is  mentioned  as  a  legitimate 
exercise  of  the  police  power.  Marriage  is  clearly  a  matter 
in  which  race  difference  has  a  natural  and  specific  operation, 
and  whether  it  can  be  regarded  as  established  that  the  off- 
spring is  apt  to  be  degenerate  or  not,  the  legislature,  in  judg- 
ing of  the  evil  tendencies  of  such  marriage  in  phj-sical  re- 
spects, must  exercise  a  large  discretion,  and  the  prohibition 
is  at  least  as  reasonable  as  that  of  marriages  between  first 
cousins. 

Messenger  v.  State,  25  Nebr.  674,  41  State,  3  Heisk,  287 ;  Dodson  v.  State, 

X.  W.  638.     See  Bowlin  v.  Lyon,  67  61  Ark.  57,  1895;  Scott  v.  State,  39 

la,  536  and  Iowa  Laws  of  1884,  ch.  Ga.     321;     Ex    parte    Francois,     3 

105.  Woods    367;    Re    Hobbs,    1    Woods 

45  See  Stimson,  §  6112.  537;  Ex  parte  Kinney,  3  Hughes  9; 

40  Burns    v.    State,    48    Ala.    195;  Frasher  v.  State,  3  Tex.  App.   263; 

Green  v.  State,  58  Ala.  190.  State  v.  Tutty,  and  State  v.  Ward, 

4T  State   V.   Gibson,    36   Ind.    389 ;  41  Fed.  753,  7  L.  R.  A.  50. 

State  V.  Jackson,  80  Mo.  175 ;  State  48  Pace  v.  Alabama,  106  U.  S.  583. 

V.  Hairston,  63  N.  C.  451 ;  Lonas  v.  49  163  U.  S.  537. 


718  CLASSIFICATION  AND  DISCEIMINATION.  §  698 

§  698.  b.  Education.  — The  constitutions  of  a  number  of 
states  require  separate  scliools  for  the  children  of  the  two 
races,  and  the  practice  of  separation  prevails  throughout  the 
South,  and  to  some  extent  in  Northern  states.  At  the  same 
time  constitutions  or  laAYS  seek  to  secure  equality  of  school 
benefits.^  Upon  the  assumption  that  separation  is  consistent 
with  equality  of  privileges,  it  has  been  upheld  both  in  state 
and  in  federal  courts.-  The  Supreme  Court  of  the  United 
States  has  not  directly  adjudicated  the  point.^  Where  no 
special  provision  for  education  of  colored  children  exists,  they 
cannot  be  excluded  from  the  public  schools.^  Separate  educa- 
tion may  be  justified  like  the  prohibition  of  intermarriage, 
by  the  specific  bearing  of  race  upon  the  subject:  there  is 
sufficient  ground  for  maintaining  that  in  view  of  the  different 
mental  characteristics  of  the  two  races  separate  schools  can 
produce  better  results,  or  that  separation  is  desirable  in  the 
interest  of  discipline.  The  distinction  of  race  in  this  matter 
is  analogous  to  the  distinction  of  sex,  and  separate  education 
of  the  two  sexes  while  not  universal  is  common  and  tradi- 
tional. Since  education  is  provided  in  public  schools,  the  state 
or  municipality  cannot  remain  neutral  or  inactive  but  must 
decide  in  favor  of  joint  or  separate  education.  In  the  exercise 
of  the  police  power  it  may,  however,  also  forbid  joint  educa- 

1  North  Carolina:     There  shall  be  -State  v.  Cincinnati,  19  Oh.  178; 

no  discrimination  in  favor  of,  or  to  Cory  v.  Carter,  48  Ind.  327;  State  v. 

the  prejudice  of  either  race.    Florida:  McCann,   21   Oh.   St.    198;    Ward   v. 

Impartial    y)rovision    shall    be'  made  Flood,     48     Cal.     36;     Chrisman     v. 

for  both.     Indiana:    The  trustees  of  Brookhaven,  70  Miss.  477,  12  South- 

fach    township     »     ♦     »     shall     or-  em  458,   1893;   Lehew  v.  Brunimell, 

ganise  the  colored  children  into  sepa-  103  Mo.  546,  11  L.  R.  A.  828;  Peo- 

rute   Hchools,   having   all    the   rights  pie  v.  Gallagher,  93  N.  Y.  438;  Peo- 

und     privileges     of     other     schools  pie   ex   rel.    Cisco   v.    School    Board, 

•     •     •     provided    there   are   not   a  161  N.  Y.  598,  56  N.  E.  81 ;  Martin 

hiilTicicnt    number    within    attending  v.   Board   of  Education,   42   W.   Va. 

diKfance,  the  H.'vcnil  districts  may  be  514,  26  S.  E.  348,  1896;  Bertonneau 

(•ouHolidatcd    and    form   one   district,  v.  Board  of  Directors,  3  Wooils  177; 

But    if    there    are    not    a    sufficient  United  States  v.  Buntin,  10  Fed.  730. 

number    within    reasonable    distance  3  Cummings    v.    County   Board    of 

lo  bo  tluiH  rr)ns((Iidatc'<l   the  trustees  Education,  175  IT.  S.  528,  "we  need 

tthnll    provide   Hu<h    otiicr    means   of  not  consider  that  question    (i  e.,  of 

education  fbr  said  children  as  shall  .separate  education)  in  this  case." 

UHC    their    projmrtion    aci-ording    to  >  State  v.  Duffy,  7  Nev.  342,  8  Am. 

iinmlxTH    of    mdiool    revenue    to    the  Kep.  713. 
IwMt  advantage. 


^  (j9<j  SEPARATION  OF  RACES.  719 

tion  in  private  institutions.  Whether,  in  the  absence  of  ex- 
press state  legislation,  the  local  school  authorities  have  the 
power  to  separate,  is  a  different  question ;  in  some  states  any 
race  discrimination  in  the  management  of  schools  is  forbid- 
den.'^ The  Supreme  Court  of  Illinois  in  the  case  last  cited  in- 
timates that  voluntary  separation  in  the  public  schools  not 
in  violation  of  law  could  not  be  interfered  with  by  the  courts. 
.Separate  taxation  of  white  persons  for  white  schools,  and 
of  colored  persons  for  colored  schools,  has  been  held  uncon- 
stitutional, both  under  provisions  of  the  state  constitution 
and  as  resulting  in  inequality  contrary  to  the  Fourteenth 
Amendment.^ 

§  699.  c.  Separation  in  public  conveyances.— Legislation 
requiring  under  penalties  that  railroad  companies  provide  sep- 
arate cars  for  the  two  races,  and  forbidding  the  riding  of  a 
person  of  the  one  race  in  a  car  set  apart  for  the  other,  has 
been  upheld  by  the  Supreme  Court  of  the  United  States,  pro- 
vided that  the  separation  is  not  enforced  as  against  interstate 
passengers.''' 

The  following  seems  to  be  the  strongest  argument  in  favor 
of  the  legality  of  compulsory  separation :  it  is  legitimate  for 
transportation  companies  to  provide  separate  accommodation 
for  the  two  races,  just  as  it  may  provide  ladies'  waiting  rooms, 
or  cars  for  smokers,  as  conducive  to  the  comfort  of  the  parties 
thus  separately  accommodated.  Transportation  companies 
may  be  subjected  to  public  control  in  the  interest  of  public 
convenience  and  comfort,  and  if  separate  accommodation  is 
generally  demanded,  and  not  unreasonably  burdensome,  it 
may  be  compelled  by  law.  It  then  follows  also  that  the  failure 
to  provide  it  or  the  failure  to  maintain  it  on  the  part  of  the 
railroad  company,  may  be  visited  with  penalties,  and  a  pas- 
senger who  intrudes  himself  into  a  compartment  in  which 
he  is  not  wanted  may  likewise  be  punished.  The  facts  in 
Plessy  V.  Ferguson  did  not  call  for  more  than  a  recognition 
of  these  principles. 

5  Wyoming   Constitution   VII,   10 ;  "  Plessy    v.    Ferguson,    163    U.    S. 

Illinois  School  Law  XVI,  4;    Chase  5,37;    Louisville   &c.   R.   Co.   v.    Mis- 

V.  Stephenson,  71  111.  383;  People  v.  sissippi,  133  U.  S.  587;   Chesapeake 

Alton,  179  111.  615,  54  N.  E.  421.  i'k  O.  R.  Co.  v.  Kentucky,  179  U.  S. 

G  Dawson  v.  Lee,  83  Ky.  49 ;  Puitt  388 ;  Smith  v.  State,  100  Tenn.  494, 

V.   County  Commissioners,  94  N.   C.  41  L.  R.  A,  432. 
709. 


720  CL.\.SSIFICAT10X  AND  DISCEIMINATION.  §  TOO 

But  the  law,  it  seems,  assumes  a  different  aspect,  if  it  is 
made  to  apply  to  persons  of  different  races  who  wish  to  travel 
together.  The  right  to  associate  with  other  free  citizens  is  an 
essential  constitutional  right,  and  may  be  regarded  as  a  priv- 
ilege of  United  States  citizenship;  it  should  extend  to  travel 
on^public  highways  as  well  as  to  other  social  and  economic 
relations  ;=*  and  while  such  a  right  may  perhaps  be  in  some 
degree  restrained  by  public  exigencies  under  given  conditions, 
as  e.  g.  in  case  of  contagious  disease,  it  is  too  important  and 
fimdamental  to  yield  to  a  mere  sentiment  of  prejudice.  The 
act  of  Louisiana  passed  upon  in  Plessy  v.  Ferguson  contained 
an  exception  in  favor  of  servants  traveling  with  families  of 
the  other  race,  and  a  similar  exception  in  favor  of  all  persons 
of  different  race  who  wish  to  travel  together,  or  special  accom- 
modation for  them,  seems  to  be  demanded  by  a  due  regard  for 
constitutional  rights. 

§  700.  Segregation  and  equality. — Compulsory  separation 
clearly  constitutes  discrimination.  Is  such  discrimination  con- 
sistent with  perfect  equality,  or  is  it  consistent  with  such 
eciualit}'  as  the  constitution  guarantees? 

It  is  argued  that  discrimination  which  consists  only  in  sep- 
aration, necessarily  operates  on  both  races  alike  and  therefore 
is  not  inequality.  Some  support  of  this  view  may  be  found  in 
\ho  analogy  of  sex.  The  interests  of  morality  may  require 
that  in  certain  employments  women  be  kept  separate  from 
men ;  yet  such  separation  may  be  carried  out  with  a  sincere 
and  anxious  regard  for  equality.  Separation  between  two 
classes  cannot  but  affect  the  two  classes  simultaneously,  and 
if  we  regard  them  as  units,  equally;  the  essential  problem  is, 
however,  whether  the  law  may  create  legal  classes  and  then 
treat  them  as  units,  without  violating  the  equality  of  each 
iiM'iiibcr  of  one  class  with  any  iik'iiiIk  r  of  the  other  class. 

It  is  u  feature  of  the  legislation  against  the  commingling  of 
the  races  that  persons  having  as  little  as  one-eighth  or  one- 
fonrtli  of  African  blood  are  classed  with  the  iiifei-ior  race.'* 
Whatever  may  b(!  said  in  favor  of  the  legitimacy  of  race  sej)- 
aralioii.  this  classing  of  mixed  blood  Avith  one  race  rather  than 

»  Sf o,  howpvor,  f'lilly  v.  Ballimoro  white  race  with  llio  I;iltor  sen  I'dlly 

A:  o.  I{.  I{.  (•<,..  1   IIn(rbr'H  H.'Ui.  Cniy   v.   State,  4   Oh.   353;    h:\uo   v. 

"  For  «lociHifiiiH  claHHiiiy  thoHo  hav-  I'.akcr,  12  Oh.  237;  Jeffries  v.  AaU- 

iiiR    more    than    half    lilooil    of    the  eiiy,  11  Oh.  372. 


§  701  SEPARATiOiX   UF  EAOKS.  721 

another  is  not  justifiable  on  any  intelligible  i)riiicipie  of  equal- 
ity, and  a  deliberate  pushing  down  of  those  Avho  approach 
the  superior  race.  Or,  if  it  is  said  that  persons  of  mixed  blood 
are  inferior  to  both  races,  it  is  an  injustice  to  the  black  race 
to  expose  it  alone  to  the  influence  of  this  degeneracy.  If  it  is 
believed  that  mixed  marriages  produce  inferior  offspring,  why 
allow  mulattoes  to  marry  negroes,  if  they  are  not  allowed  to 
marry  whites?  Here  it  seems  clear  that  a  protection  is  ac- 
corded to  one  race  which  is  not  accorded  to  the  other.  This 
is  an  illustration  of  the  truth  that  it  is  extremely  difficult  to 
reconcile  race  distinctions  with  the  principles  of  our  constitu- 
tional law. 

Assuming,  however,  that  two  classes  are  not  only  distinct, 
but  each  in  itself  homogeneous,  it  is  the  established  opinion 
that  separation  if  strictly  mutual  is  not  contrary  to  the  prin- 
ciple of  equality,  or  to  the  narrower  principle  of  the  equal 
protection  of  the  laws.  If  under  the  plea  of  separation  gross 
discrimination  is  practiced  against  the  colored  race,  relief  may 
perhaps  be  had  under  the  principles  laid  down  in  Yick  AYo  v. 
Hopkins,!''  but  if  separation  inevitably  and  incidentally  results 
in  some  inequality,  such  inequality  must  be  borne  as  a  neces- 
sary consequence  of  an  otherwise  beneficial  and  constitutional 
policy.  This  view  is  in  accord  with  the  decision  of  the  Supreme 
Court  in  Cummings  v.  County  Board  of  Education,!  i  where 
federal  interference  was  refused  though  the  system  of  separa- 
tion deprived  the  colored  pupils  of  high  school  privileges.  The 
Supreme  Court  indicates  in  its  opinion  that  it  is  the  constitu- 
tional duty  of  the  state  to  reconcile  as  far  as  possible  equality 
with  separation.!  2 

SEX.     §§  701-703. 

§  701.  Civil  and  political  status.— The  common  law  of  Eng- 
land has  never  discriminated  against  women  in  matters  of 
property,  contract,  tort  or  crime,  by  reason  of  their  sex,  except 
in  the  rules  of  descent,  but  it  placed  married  women  under 
fnr  reaching  disabilities.  These  disabilities  have  been  entirely 
or  to  a  great  extent  abrogated  in  all  the  states,  in  some  cases 
by  constitutional  provisions,  and  this  legislation  is  important 

10  118U.  S.  35G.  proportionate      amount      of      school 

11  175  U.  S.  528.  money    was    given    to    an    adjoining 

12  See  Hooker  v.   Town  of  Green-  district    in    order    to    secure    school 
ville  (N.  C),  42  S.  E.  141,  where  a  privileges. 

46 


TOO  CLASSIFICATION  AND  DISCEIMINATION.  §  702 

for  the  purpose  of  the  police  power,  as  showmg  an  altered 
conception  not  only  of  the  relation  of  marriage,  but  also  of  the 
general  claims  of  the  female  sex  to  equal  rights  and  to  civil 
independence. 

In  Wyoming,  Colorado,  Idaho  and  Washington,  women  enjoy 
the  right  of  suffrage  to  the  same  extent  as  men,  in  some  states 
they  are  allowed  to  vote  for  certain  statutory  offices,  chiefly 
such  as  are  connected  with  education,  but  generally  speaking 
women  are  excluded  from  the  electoral  franchise. 

The  right  of  women  to  hold  office  is  sometimes  regulated 
by  express  legal  provision  ;i  =*  in  the  absence  of  such  provision 
they  have  been  held  incapable  of  filling  a  constitutional  elective 
office,  on  the  ground  that  only  electors  can  be  chosen,^'  or  a 
judicial  office,  because  by  immemorial  tradition  only  men  were 
•  lualified  to  act  as  judges  ;i^  but  the  tendency  is  perhaps  to 
recognise  their  right  to  hold  statutory  offices.^^'  On  the  whole 
it  is  clear  that  women  in  their  political  status  are  far  from 
enjoying  equality  with  ]iien. 

§  702.  Status  under  the  police  power. — The  Constitution  of 
California  provides:^"  "No  person  shall  on  account  of  sex 
be  disqualified  from  entering  upon  or  ])nrsuing  any  lawful 
business,  vocation  or  profession."  Ulinois^'^  and  Washing- 
ton'••  make  like  provision  by  statute,  with  exceptions  as  to 
military  employment  and  the  right  to  hold  public  or  (in  Illi- 
nois) elective  offices. 

At  common  law  there  wci-e  no  exi)ress  rules  as  to  the  right 
of  women  to  pursue  avocations,  the  matter  being  determined 
largely  by  custom.  Even  now  jiositivc  rules  are  an  exception, 
and  tlie  question,  whcj-e  it  arises,  is  wlii'ltici-  a  custom  by  which 
women  have  been  kept  out  of  certain  employments  should  be 
intcrjirctcd  iis  a  disability.  This  is  Die  vicAV  Avhich  has  bct>n 
taken   in  several    inrisdictinns  witli   reference  lo  ;i(lmission  of 


>3  United  StutcH  Rev.  Stat.  §  ^Gr,.  v.  Adnms,  .58  Oli.  St.  (ill',  .11    N.  E. 

i«Oron   V.  Abbott,   TJl    Midi.  .110,  1.3.5. 
17   L.   R.   A.  »•_';   Atchisdii   V.  T.uciia,  I'iSce  Stale  v.  TTostcttcr,  i:?7  Mo. 

At3     Ky.      jr.I.      r<„itr,i.     WriRlit     v.  (i.3(i,  :{!i  S.  W.  270,  .-^S  L.  1{.  A,  2GS, 

Nooll,    16   KanH.   fiOI.  witli  full  note. 

'6  Op.  .IiiHtires,  lfi.5  MaHH.  .5<)<».  r^'J  '^  Ail.  XX,  §   18. 

]j.   R.    A.   .3.50,   4.3   N.   E.   927;    State  i"  Aet  March  22,  1872. 

in  Rallinger's  Code,  §  .3322. 


§702  DISCRLMINATION  ACCORI)l.\(;  TO   SEX.  723 

women  to  the  practice  of  the  law,  which  was  denied  in  Massa- 
chusetts, Illinois,  Virginia  and  Maryland.^*' 

The  federal  supreme  court  has  held  that  the  right  to  prac- 
tice law  is  not  one  of  the  privileges  and  immunities  of  United 
States  citizenship,  and  no  use  appears  to  have  been  made  of 
the  argument  that  the  equal  protection  of  the  law  demanded 
that  women  should  be  allowed  the  same  means  of  earning  a 
livelihood  as  men.^^  In  Illinois  the  disability  to  practice  law 
by  reason  of  sex  Avas  abolished  afterwards  by  statute,  and  in 
most  jurisdictions  the  right  is  now  conceded.  With  regard 
to  other  professions  and  the  ordinary  kinds  of  business  there 
seems  to  exist  neither  exnress  prohibition  nor  implied  dis- 
ability. 

The  disability  to  i)ractice  law  does  not  afford  any  foundation 
for  the  claim  that  the  legislature  may  freely  determine  what 
avocations  may  be  pursued  by  women.  The  legal  profession 
is  in  this  matter  treated  more  as  an  office  than  as  a  private 
business.  The  principle  of  the  equal  protection  of  the  laws 
seems  to  demand  that  women  shall  have  the  same  opportuni- 
ties of  earning  their  living  as  men,  unless  the  pursuit  is  such 
that  sex  constitutes  a  special  ground  of  objection.  The  laws 
relating  to  the  right  of  married  women  to  establish  themselves 
as  sole  traders,  affect  only  questions  of  civil  liability  of  husband 
and  wife  and  the  right  to  earnings, 22  and  do  not  fall  under 
the  police  power.  It  would  probably  be  a  legitimate  exercise 
of  the  police  power  to  make  a  married  woman's  right  to  en- 
gage in  industrial  employment  to  depend  upon  her  husband's 
consent,  as  a  regulation  of  marital  authority,  but  such  legis- 
lation would  be  contrary  to  public  sentiment  and  does  not 
exist. 

The  equality  of  the  sexes  should  not  prevent  discriminative 
police  provisions  based  on  difference  of  sex,  though  they  may 
operate  chiefly  as  disabilities  imposed  on  women.  That  dis- 
crimination does  not  necessarily  operate  in  this  direction,  ap- 
pears from  a  statute  of  Ohio   providing  special  punishment 

20  Robinson 's  Case,  131  Mass.  376,  21  Bradwell    v.    Illinois,    16    Wall. 

41   Am.  Rep.   239;   Ee  Bradwell,  55  130;  In  re  Loekwood,  1.54  U.  S.  116. 

111.    535;    In    re   Loekwood,    154    U.  22  Schonler      Domestic      Relations, 

S.  116;  Re  Maddox,  93  Md.  727,  55  5th  edn.  §§  163-170;  Todd  v.  Clapp, 

L.  R.  A.   298.     Co7itra,  Re  Hall,  50  118  Mass.  495. 
Conn.  131,  47  Am.  Rep.  625. 


7i»4  CLASSIFICATION  AND  DISCRIMINATION.  §  703 

;i?amst  tramps,  and  defining  them  so  as  to  exclude  females.^- 
1  lere  it  is  the  male  sex  which  is  discriminated  against. 

Special  provisions  regarding  women  occur  in  legislation 
regarding  labor  and  the  retailing  of  intoxicating  liquors.  The 
laws  for  the  protection  of  women  employees  have  been  con- 
sidered before.-^ 

§  703.  Employment  of  women  in  the  liquor  business.— In 
Indiana  liquor  licenses  may  be  granted  only  to  male  persons,^^ 
and  the  employment  of  women  in  places  where  intoxicating 
liquors  are  retailed  is  not  uncommonly  restricted  or  even  for- 
bidden. In  New  York  no  woman  not  a  member  of  the  keeper's 
family  may  sell  or  serve  liquor  on  the  premises  f''  in  some  cases 
any  employment  of  women  in  such  a  place  is  made  unlawful.-' 
In  California,  under  the  constitutional  provision  above  quoted, 
an  ordinance  making  it  a  misdemeanor  for  a  female  to  wait 
on  any  person  in  any  dance  cellar  or  bar  room  was  held 
invalid,-'^  but  later  on  an  ordinance  prohibiting  the  sale  of 
li([uors  in  dance  cellars  or  other  places  of  amusement  where 
feinales  attend  as  waitresses,  was  sustained, ^^  as  was  also  the 
refusal  of  licenses  to  those  employing  femalos,^*^  upon  the 
ground  that  the  constitutional  clause  did  not  prevent  the  pre- 
scribing of  conditions  u]ion  which  the  business  of  retailing 
lifiuors  shall  be  permitted  to  be  carried  on.  It  would  seem 
that  in  all  these  cases  alike  the  female  was  practically  pro- 
hibited from  engaging  in  one  particular  business,  and  that  the 
particular  form  in  which  the  result  is  accomplished  should  be 
iiiunati'riai.  An  un<|uali(ied  constitutional  recognition  of  the 
<'(|uulity  of  sexes  in  all  employments  naturally  makes  it  dif- 
ficult to  support  legislative  discrimination  even  for  the  most 
legitimate  purposes. 

In  the  absence  of  specific  constitutional  provisions  the  pro- 
hibiton  oi'  Ihc  eni|)loyment  of  females  as  waitresses  in  places 
when*  li(|uoi*  is  retailed  has  been  sustained  without  difficulty.'" 
'Pliis  sho\ild  not  be  placed  upon  the  ground  that  the  control 
over  llie  lifjnor  trade  is  so  absolute  as  to  allow  diserimination 

"  State  V,  HdKJin,  fi3  Oli.  St.  202,  an  Kx  parte  Hayes,  98  Cal.  555,  20 

58  N.  E.  57'J.                                     '  L.  "R.  A.  701. 

2«  Sw  S  •'^11,  Kujtra,  •'"' FoKtor  v.    IViIici'  ('(imniiHsioiuTS, 

!f'  HInir  v.  Kilpatrick,  10  lii-l.  XV^.  102  Cal.  48:i 

•n  T/if|tnir  Tax  Law,  §  :'il.  '  Bfrpniaii    v.    Clovolaiid,    '-W    Oli. 

»M{o  roiiMidinr,  «:i  Vvi\.   h'lp.   LIT.  St.   ()51  ;    City   "f    Ilf.bdkcri    v.   (iood- 

"Ho  MaKuirn,  57  Cal.  (504.  man    (N.  J.  L.),  51    Atl.  1092;   Ma- 


§  703  DISCRIMINATION  ACCORDING  TO  SEX.  725 

in  the  free  discretion  of  legislative  or  administrative  authori- 
ties, but  rather  upon  the  ground  that  the  principle  of  equality 
of  the  sexes  yields  under  circumstances  where  it  would  be  an 
encouragement  to  vice.  It  seems  that  women  could  not  be 
prohibited  from  accepting  employment  in  wholesale  liquor 
establishments,  although  these  are  as  much  at  sufferance  as 
the  saloon,  and  even  a  sweeping  prohibition  of  their  employ- 
ment in  places  of  retail  sale,  as  e.  g.  the  employment  of  scrub- 
women at  hours  when  the  place  is  not  frequented  by  custom- 
ers, would  be  unreasonable. 

A  legal  provision  which  should  undertake  to  prohibit  women 
from  frequenting  saloons  would  undoubtedly  be  a  more  incisive 
interference  with  individual  liberty.  If  applied  to  all  places 
where  liquor  is  sold  to  be  drunk  on  the  premises  it  would  under 
the  social  conditions  of  many  cities  be  clearly  unreasonable ; 
in  Kentucky  an  ordinance  forbidding  women  to  "go  in  and  out 
of  any  building  where  a  saloon  is  kept,  etc.,"  was  held  to  be 
oppressive  and  void;^^  j^^^^  municipal  ordinances  have  been 
sustained  making  it  unlawful  for  any  female  to  be  after  mid- 
night in  any  public  drinking  saloon.^"  The  test  of  the  validity 
of  the  prohibition  would  seem  to  be  that  the  presence  of  females 
in  a  particular  class  of  places,  or  at  some  particular  time, 
involves  a  danger  to  public  order  or  public  morals.  The  pro- 
vision of  the  Rhode  Island  law^^  forbidding  the  sale  to  women 
of  liquor  to  be  drunk  on  the  premises  would  probably  be  sus- 
tained on  the  theory  of  absolute  legislative  power  over  intoxi- 
cating liquors;  but  on  principle  it  seems  an  unjustifiable 
discrimination,  since  the  mere  consumption  of  liquor  in  public 
places  on  the  part  of  women  is  no  more  immoral  than  it  is  on 
the  part  of  men. 

It  should  be  concluded  that  the  equality  of  sexes  is  a  con- 
stitutional principle  only  in  so  far  as  sex  or  the  difference  of 
sex  does  not  constitute  a  specific  danger.  The  proper  recog- 
nition of  the  natural  inequality  of  the  sexes  should  not  be 
regarded  as  contrary  to  any  principle  of  our  constitutional 
law. 

rion  V.  Reynolds,  14  Mont.  383;  Re  32  Gastineau  v.  Commonwealth,  22 
Considine,  83  Fed.  Rep.  157;  State  Ky.  Law  Rep.  157,  49  L.  R.  A.  111. 
V.  Consadine,  16  Wash.  858,  47  Pae.  as  Ex   parte    Smith,    38    Cal.    702, 

755  (here  employment  in  any  ea-  1869;  Adams  v.  Cronin,  29  Colo, 
paeity  forbidden),  488,  69  Pae.  590. 

34  General  Laws,  eh.  102,  §  13. 


72(3  CLASSIFICATION  AND  DISCEIMINATION.  §  70-4 


ALIENS.     §§  704-707. 

§  704.  Power  of  United  States. — The  constitutional  status 
of  aliens  must  be  considered  with  reference  to  the  power  of 
the  United  States  and  of  the  states. 

The  United  States  has,  as  against  other  nations,  all  the 
powers  which  a  sovereignty  may  exercise  under  the  principles 
of  international  law,  except  in  so  far  as  these  powers  may  be 
modified  by  special  treaty  stipulations.  In  the  exercise  of 
these  powers  the  federal  government  is  limited  by  the  require- 
ment of  due  process  of  law,  but  it  has  been  settled  by  judicial 
decision  that  due  process  does  not  require  judicial  proceedings 
either  for  the  exclusion  or  for  the  deportation  or  expulsion  of 
aliens,  but  that  the  enforcement  of  laws  in  those  respects  may 
be  entrusted  to  executive  officers  without  any  appeal  to  the 
courts,-^"'  while  infamous  and  probably  any  other  punishment 
can  be  intiicted  on  aliens  only  by  the  judgment  of  a  court.^^ 

In  other  countries  the  question  usually  discussed  in  this 
connection  is  whether  the  executive  without  express  legislative 
delegation  of  authority  may  expel  aliens.  In  England  the 
power  of  the  Crown  is  denied  ;3"  in  Germany  the  right  of  the 
executive  is  recognized  ;3s  in  France  it  is  delegated  by  stat- 
ute.3"  No  such  power  is  claimed  foi-  the  federal  executive  in 
llir  United  States. 

§  705.  Power  of  states. — The  states  are  bound  in  their  treat- 
nii'iit  of  aliens  partly  by  the  international  obligations  of  the 
United  States,  partly  by  the  provisions  of  the  federal  constitu- 
lion.  A  state  cannot  exclude  aliens  from  its  territory  for 
political  or  economic  reasons,  or  limit  them  in  their  right  to 
carry  on  foreign  commerce,  since  in  these  points  the  federal 
aiiUiority  is  not  iiKtcly  supreme  but  exclusive.  The  state  can 
theri'fore  not  |>n1  ;i  t;i\  u|ii)ii  immigrants  or  place  other  restric- 
tions npon  llii'ii-  i-i'_''lit  to   land   or  come   into  the  state.'"      An 

""Ekiu   V.   United   States,   142   U.  ••"  Woiijr    Wiiifr    v.    United    States, 

H.   (•,:,]■    V„uii    Viio   TiriK   v.   United  Ki.'V  U.  S.  228. 

HintPH,    149   U.   S.   608;    Lem    Moon  '17  See  Law  Quarterly  Review.  Vol. 

Hing  V,  United  StatoH,  l.'iS  U.  S.  n.'lH;  VI,  p.  27. 

Vnmatnya   v.    KiHhcr,    ISO   U.   S.    86  "s  ficorg  Meyer,  Staat.srecdit,  §  21."). 

(at   IcaHt  where  be  han   not    yet  ac-  ''n  Act  of  December  3,  1849,  Art.  7. 

qniri'd  a  jii-rrnanent  and  Hctlled  resi-  •»"  PasHenger   Cases,    7   ITow.    283; 

denre,    Init    probalijy    irrespective   of  State   v.   S.   S.   Constitution,   42   Cal. 

thin  limitatinn).  .'^78;    People  v.  CJompaguie  Gencralc 


§  70ti  ALIENS.  727 

exception  from  this  priuciple  is  recognised  as  to  measures 
confined  strictly  to  immigrants  dangerous  to  health  or  morals, 
especially  quarantine  measures.''^  Nor  is  it,  generally  speak- 
ing, competent  for  the  states  to  deprive  resident  aliens  of  any 
privileges  accorded  to  foreigners  by  the  comity  of  nations  or 
to  discriminate  against  them  where  equal  treatment  is  guar- 
anteed by  treaty .^2 

§  706.  Equal  protection  and  equal  capacity. — A  similar 
prohibition  rests  upon  the  states  in  consequence  of  the  Four- 
teenth Amendment,  which  forbids  them  to  deny  to  any  person 
within  their  jurisdiction  the  equal  protection  of  the  law.  That 
with  regard  to  aliens  equal  protection  means  equal  justice  and 
equal  security  rather  than  perfect  equality*^  follows  from  the 
well  established  principle  that  the  states  may  in  accordance 
with  the  common  law  deny  to  aliens  the  right  to  own  land,^'' 
unless  such  right  is  stipulated  by  treaty.''^ 

It  would  be  unwarranted  to  infer  from  the  peculiar  power 
of  the  states  over  land  tenures  that  the  legal  capacity  of  aliens 
is  in  other  respects  completely  under  their  control,  so  that  the 
duty  of  legal  protection  would  apply  only  to  such  rights  as 
the  state  chooses  to  allow  aliens  to  acquire.  It  is  true  that 
the  distinction  between  security  of  rights  held,  and  capacity 
to  hold  rights,  is  recognized  by  the  United  States  Revised 
Statutes.  §  1977  gives  to  all  persons  the  same  security,  while 
§  1978  gives  only  to  all  citizens  of  the  United  States  the  same 
right  to  inherit,  purchase,  lease,  sell,  hold  and  convey  real  and 
personal  property. 

As  to  the  right  to  engage  in  occupations  the  federal  statutes 
are  silent  except  that  under  §  1977  discriminative  taxes, 
licenses  and  exactions  of  every,  kind  are  forbidden.  So  an 
act  of  Pennsylvania  (of  June  15,  1897)  taxing  employers  for 
every  foreign  born  unnaturalized  person  employed  by  them 
was  declared  unconstitutional  by  the  state  and  federal  courts."*^ 

Transatlantique,     107     U.     S.     159;  -iL'Yick  Wo  v.  Hopkius,  118  U.  S. 

Henderson  v.  Mayor,  92  U.  S.  259 ;  356 ;  Ee  Lee  Sing,  43  Fed,  Eep.  359. 

Chy  Lung  v.  Freeman,  92  U.  S.  275.  «  See  §   1977  E.  St. 

41  New  York  v.  Miln,  11  Pet.  102 ;  44  Fairfax  v.  Hunter,  7  Or.  602. 

Morgan's  &c.  Co.  v.  Louisiana,   118  -ts  Chirac    v.    Chirac,    2    Wh.    259; 

IT.  S.  455;    Compagnie  Francaise  v.  Hauenstein    v,    Lynham,    100    U.    S. 

Louisiana    State    Board    of    Health,  483. 

186  U.  S.  380.  40  Juniata  Limestone  Co.   v.  Fag- 


728  CLASSIFICATION  AND  DISCKIMINATION.  §  706 

Before  the  enactment  of  the  federal  statute  above  cited  hxws 
were  upheld  requiring  of  aliens  a  special  license  fee  for  digging 
in  gold  mines,-*'  and  imposing  upon  them  an  inheritance  tax.^'^ 
A  state  may  undoubtedh^  require  citizenship  of  its  own  officers, 
and  by  analogy,  it  seems,  of  all  avocations  involving  a  public 
trust,-*^  and  the  requirement  is  a  common  one  in  the  rules 
relating  to  admission  to  the  practice  of  the  law. 

As  to  other  occupations,  the  requirement  of  citizenship  is 
uncommon,  but  is  found  occasionally,  so  in  a  statute  of  New 
York  prescribing  the  qualification  of  chiropodists.^"  It  has 
been  held  in  ^Maryland  that  the  law  may  provide  that  liquor 
licenses  shall  be  issued  only  to  citizens.^  "If  we  assume  for 
the  sake  of  argument  that  Trageser  has  under  treaties  every 
right  which  a  citizen  could  have,  the  answer  is  that  no  citizen 
of  the  United  States  can  complain  because  a  police  regulation 
denies  him  the  privilege  of  selling  liquor  even  if  the  privilege 
is  granted  to  other  citizens."  In  view  of  the  expressions  as 
to  the  right  to  sell  liquor,  to  be  found  in  Crowley  v.  Christen- 
sen.-  it  is  not  improbable  that  the  exclusion  of  aliens  would 
be  sustained  by  the  Supreme  Court;  but  Avith  regard  to  other 
occupations,  even  those  requiring  special  skill,  or  moral  quali- 
lications,  discrimination  against  resident  aliens  ought  not  to 
lie  in  the  discretion  of  the  states.  The  analogy  of  the  disability 
to  hold  laiul,  a  survival  of  feudal  conceptions,  should  not  be  ex- 
tended. It  has,  accordingly,  been  held  in  Michigan  that  citi- 
zenship may  not  b.e  made  a  requirement  for  engaging  in  the 
avocation  of  a  barber.-'' 

I'pon  well  established  principles,  the  right  to  engage  in 
foreign  trade  is  beyond  the  control  of  the  states.  But  it  is 
also  clear  lliat  the  right  to  take  up  any  other  common  oc- 
(Mii)ation  cannot  be  ])arred  l)y  the  states  to  resident  aliens, 
por  f)tlierwis('  ii  stjit(^  might  close  all  profitnlil"  avocations  to 

Icy,   1H7  Pa.   VXi,  •\-    I-.   \l.  A.  442;  struinents,   see   Eoby   v.    Siiiitli,    \'M 

FriiHcr   V.   McConway  &  Torley  Co.,  IikI.    342;    Farmers'    L.    &    Tr.    Co. 

SI'  Fi'd.  Kep.  2r)7.  v.  C,  &  A.  R.  R.  Co.,  27  Fed.  Kop. 

»T  propio   V.    Nnglcc,    1    Cul.    232.  146;    Shirk  v.   La   Fayette,   52   Fed. 

riu'    A<t    of   Conj^rcHH    of    May    10,  Hep.  .S57. 

1872,    connni'M    llin    right    to    h.cato  "■•"  Laws  of  1S95,  eh.  804,  §  4. 

miniTuI    ilaimn    on    public    hiiiils    lo  i  Tragoscr  v.  Cray,  73  IVtd.  250. 

••it;  f  lh«'  Fnilcd  SlalcH.  -•  137  (T.  S.  SO. 

*  r    V.  Crima,  S  How.  490.  "  Toniplar  \\  Stale  Board   of    iOx 

♦"Am   to   tniHtH  under   private   in-  .-nniiierH  (Mich.),  90  N.  W,  1058. 


g  707  X0N-RE«1  DENTS.  729 

thein,  and,  by  preventing  them  from  earning  a  livelihood, 
drive  them  away.  Such  a  result  would  bring  about  inter- 
national complications  and  can  therefore  be  only  a  matter  of 
national  action.  The  federal  adjudications  in  the  matter  of 
discrimination  against  Chinese  in  the  laundry  business,  while 
involving  also  treaty  rights,  seem  to  support  this  position.'* 

§  707.  Resident  and  non-resident  aliens. — In  a  number  of 
states  the  rights  of  resident  aliens  are  secured  by  provisions 
of  the  state  constitutions.  Thus  Wisconsin  provides i^  "No 
distinction  shall  ever  be  made  by  law  between  resident  aliens 
ar.d  citizens,  in  reference  to  the  possession,  enjoyment  or 
ilescent  of  property. "«  Wyoming'  adds  taxation  of  property. 
Oregon^  restricts  the  guaranty  to  white  foreigners. 

Aliens  who  are  at  the  same  time  non-residents  may,  it  seems, 
be  discriminated  against,  in  the  absence  of  treaty  stipulations, 
in  the  matter  of  membership  in  corporations,  and  probably  in 
other  matters  not  affecting  either  fundamental  rights  or  com- 
merce.^ 

NON-RESIDEXTS.     §§  708-712. 

§  708.  Citizens  of  other  states. — Non-residents  are  either 
citizens  of  the  United  States  or  aliens.  It  is  not  common  to 
make  provision  for  state  citizens  not  residing  in  the  state;  if 
they  reside  abroad,  it  is  only  their  national  citizenship  that  is 
relevant ;  by  taking  up  their  residence  in  another  state  they 
become  under  the  Fourteenth  Amendment  citizens  of  that 
state.!*^  Hence,  as  between  the  states,  residence  and  citizenship 
mean  practically  the  same  thing,  and  the  state  constitutions 
regulating  the  qualifications  for  suffrage  generally  speak  of 
residents  or  inhabitants,  and  not  of  state  citizens. 

The  status  of  citizens  of  other  states  under  the  police  power 
need  be  considered  only  in  so  far  as  they  are  non-residents, 
and  we  may  confine  ourselves  to  non-resident  citizens,  as  pow- 
ers over  non-resident  aliens  have  been  discussed  in  connection 
with  alienage. 

The  Constitution  of  the  United  States  provides,  IV  2 :    "  The 

i  Yick  Wo  V.  Hopkins,   118  U.  S.  «  Constitution  I,  31. 

r.56;  Re  Parrott,  1  Fed.  Eep.  481.  » State     v.     Travelers'     Insurance 

•-.  Constitution  I,   15.  Company,  70  Conn.  590,  40  Atl.  46.5, 

oNob.   I,   25;    Col.   II,   27;    Mont.  1895. 

Til,   25;   West   Virginia   II,   5,   con-  lo  Bradwell    v.    Illinois,    IG    Wall, 

lain   practically  the  same  provision.  130;  Chicago  &  N.  W.  E.  Co.  v.  Ohle, 

T  Constitution  I,  29.  117  U.  S.  123. 


730  CLASSIFICATION  AND  DISCRIMINATION.  §  709 

citizeus  of  each  state  shall  be  entitled  to  all  privileges  and 
immunities  of  citizens  of  the  several  states.''  Section  1978  of 
the  Revised  Statutes  says:  ''All  citizens  of  the  United  States 
shall  have  the  same  right  in  every  slate  and  territory,  as  is 
(.-njoyed  by  white  citizens  thereof,  to  inherit,  purchase,  lease, 
sell,  hold  and  convey  real  and  personal  pr()])erty." 

>j  709.  Non-resident  U.  S.  citizens. — Have  these  clauses  any 
ai)[)lication  to  non-residents.'  It  may  be  urged  that  the  law  of 
a  state  discriminating  against  non-residents  a]iplies  to  its  own 
citizens  who  may  reside  out  of  the.  state,  su  that  a  non-resident 
who  is  a  citizen  of  another  state  is  treated  exactly  like  a  citizen 
of  the  first  state  undei*  like  citctiiustances.  'I'hiis  marital  rights 
and  privileges  nuiy  be  conlined  to  pai-tics  marrying  or  living 
within  the  state  creating  the  rights."  Vet  Avithin  the  United 
States  residence  and  citizenship  go  so  connnonly  together  that 
the  courts  may  take  cognizance  of  the  fact  that  a  discrimina- 
tion again.st  non-residents  is  in  many  cases  n  discrimination 
against  cit/ens  of  other  states.  So  it  has  been  held  that  non- 
resident creditors  cannot  be  postpone!  1  to  resident  creditors  in 
their  right  to  share  in  the  assets  ol'  an  insolvent  debtor.^- 
There  is  obviously  no  intrinsic  relation  between  Hie  fact  of 
residence  and  the  preference  given.  The  same  is  trne  of  the 
general  right  to  institute  actions.^-'  Otherwise,  however,  of  a 
biw  which  ])rovides  thai  when  Hie  defendant  is  out  of  the  state 
tin*  statute  of  limitations  shall  \\<i\  tnn  against  the  plaintiff,  if 
the  latter  resides  in  the  state,  but  siiall,  il'  In^  ri^sides  out  of  th<^ 
'•tale.  This  the  Sn|iniiie  ('oiirl  upholds  as  a  \aliil  discriiiiiiia- 
tioM  upon  the  gronnd  thai  if  the  slalnle  does  not  run  as  be- 
tween Mnii-j-esident  ci'i'd i| oi-s  and  their  debtoi's,  it  iiii.'-;hl  often 
ha|M>eii  thai  a  right  of  action  wonld  be  extingnished,  |)ei'lia])s 
for  years,  in  1h<'  state  whci'i'  the  jiai'lies  reside,  and  .\-et  if  the 
ilefendant  should  li,.  found  in  the  stale  whose  la\v  is  nn(b'r 
consideration,  it  ni;i.\  br  only  in  a  railroad  trai:.,  a  suit  could 
l»e  sprung  upon  him  after  the  claim  had  be^'ii  forgotten'' 
Thert;   is,   c<)riset|ui-n1 1.\'.   a    rrlnlion    betwiMMi    residence    and    the 

•M.'oniH-r   V.    Klliot,    is    \\„\\.   r,'.n -.  i-l'.l;il<c     \.     McClmi;,',     1 7l'    U.    S. 

I'riitt  V.  TcflTl.  II   Mi.li.   i;il:   Atkinw  'J'.W. 

».    AtkitiH,    IS    Ncl..    171;    Hniiictt    \.  i:>('..l(.   v.   ('\inninf;li:iiii,    \:VA    V.   S. 

lljiniiH,   ."»!    WiH.    L'.")!;    UnmngtoM    v.  !il7. 

•  JrimvpMor,  40  Knn,  7.^0,  -j;  P;ic.  i:!7,  "  <  •lirimm;,'    Ciiiiiil     l'.;iiilv    \.     liow- 

n  I,.  \{.  A.  'JH'J.  .ly.  !»:',   I'.  S.  7'-',  lS7fi. 


§  710  NON-RESIDENTS.  731 

runiiiug  of  the  statute  of  limitations  which  makes  a  discrim- 
ination on  that  basis  justifiable.  And  the  question  should  be 
in  every  case :  has  residence  any  bearing  upon  the  subject- 
matter  of  the  law?  Non-residents  have  a  constitutional  right 
to  become  creditors  and  they  must  have  the  usual  rights  to 
secure  their  claims,  they  may  therefore  not  be  forbidden  to 
become  or  freely  select  trustees  under  deeds  of  trust, ^^  but 
executors  and  administrators,  who  are  primarily  officers  of  the 
court  which  has  jurisdiction  of  the  devolution  of  decedents' 
estates,  may  be  required  to  be  residents  in  order  to  be  under 
the  control  of  the  court. ^"^ 

§  710.  Non-residence  relevant  for  police  purposes. — In  the 
matter  of  police  legislation,  the  requirement  of  a  valid  reason 
for  discrimination  means  that  the  fact  of  non-residence  consti- 
tutes a  special  objection  or  danger.  Even  where  this  condition 
exists,  the  police  power  may  give  way  to  the  freedom  of  inter- 
state commerce.^'''  With  regard  to  domestic  business  only,  it  has 
been  held  in  New  Hampshire  that  no  discrimination  in  licenses 
can  be  made  between  the  citizens  of  the  state  and  of  other 
states  in  the  sale  of  shrubs  or  trees,  or  of  lightning  rods.^^ 
The  same  has  been  held  with  regard  to  peddlers  ;i^  yet  it  may 
be  argued  that  in  a  business  regulated  on  account  of  the  lack 
of  fixed  location  a  discrimination  against  non-residents  should 
be  valid.2o  It  is  clear  that  a  resident  of  the  state  can  be  held 
liable  more  easily  than  a  non-resident  for  fraud  or  violation  of 
police  regulations. 

The  exclusion  of  others  than  inhabitants  of  the  state  from 
the  right  to  retail  liquor,  which  has  been  sustained,^^  may  be 
justified  upon  similar  principles;  the  Supreme  Court,  how- 
ever, seems  to  sanction  this  discrimination  upon  the  broader 
ground  that  the  selling  of  liquor  is  not  one  of  the  rights  of 

15  Roby  V.  Smith,  131  Ind.  342.  refuse  peddling  licenses  to   foreign- 

16  Woerner,      Administration,      §§      ers.  Trade  Code  §  56d. 

230,  241.  -1  Welsh    v.    State,    126    Ind.    71, 

iTLeisy  v.  Hardin,  135  U.  S.  100.  9  L.  R.  A.  664;  Mette  v.  MeGuekin, 

IS  State    V.    Lancaster,    63    N.    H.  18  Neb.  323,  affirmed  U.  S.  Supreme 

267;  State  v.  Wiggin,  64  N.  H.  508,  Court   L.    ed.    Bk.    37,    p.    934    (not 

1  L.  R.  A.  56.  officially    reported)  ;    Kohn    v.    Mel- 

i»Ex  parte  Bliss,  63  N.  H.  135.  cher,  29  Fed.  Rep.  433,  1887,  where 

20  Germany   allows  the  authorities  only   residents   of   the   county   could 

to  grant  and  by  implication  also  to  be  licensed  so  that  there  was  no  dis- 
crimination between  states  as  such. 


732  CLASSIFICATION  AND  DISCEIMINATION.  §  711 

citizenship  to  Avhich  the  guaranty  of  the  Fourth  Article  of  the 
constitution  applies.22  But  a  discriminating  license  tax  placed 
on  non-residents  has  been  held  to  be  invalid.^s 

§  711.  Practice  of  medicine,  etc. — Perhaps  the  state  might 
confine  the  right  to  practice  medicine  to  residents,  though 
such  a  provision  does  probably  not  occur;  on  the  contrary, 
an  exemption  from  the  requirement  of  a  state  license  is  not 
infrequently  established  in  favor  of  non-resident  physicians 
called  into  the  state  for  consultation,  and  has  been  upheld  as 
reasonable.-^  "With  regard  to  attornej^s  the  requirement  of 
residence  would  probably  not  be  questioned;  in  New  York  a 
special  provision  has  been  deemed  necessary  to  allow  them  to 
reside  in  another  state. ^s  Perhaps  the  provisions  against 
bringing  into  the  state  armed  bodies  of  men  for,  the  protection 
of  property  might  be  sustained,  though  the  prohibition  does 
not  extend  to  the  employment  of  residents ;  for  the  letting  of 
services  for  purposes  involving  peace  and  safety  is  clearly  an 
employment  subject  to  control,  and  non-residents  may  be  ex- 
pected to  be  more  indifferent  to  the  peace  of  the  state  than 
residents.  The  Report  of  the  Industrial  Commissions^  ques- 
tions whether  the  provision  is  consistent  with  the  national 
constitution. 

In  a  number  of  states  the  laws  relating  to  the  admission 
to  the  practice  of  medicine  provide  for  the  issue  of  licenses 
to  practitioners  who  have  practiced  for  a  stated  number  of 
years  prior  to  the  enactment  of  the  law  within  the  state.  This 
constitutes  a  discrimination  in  favor  of  residents,  which  has 
been  justified  on  the  ground  that  a  person  may  be  competent 
to  practice  in  a  locality,  with  the  climatic  and  sanitary  con- 
ditions of  which  he  is  familiar,  while  without  scientific  training 
he  rnay  be  incompetent  to  practice  in  another  locality.^J  It 
may  also  b(!  said  that  with  regard  to  resident  practitioners 
established  local  reputation  is  sufficient  protection  against 
(|ua«'kery.    The  jjrovision  has  generally  been  upheld.^s 

22  LoiHy  V.  Ilfinlin,  13;')  U.  S.  100.  20  V,  144. 

v.T  Sinclair  v.  Stato,  fiO  N.  C.  47.  27  Ex  parte  Spinney,  10  Nev.  323, 

•-•♦Sfaf.-  V.  Van  Doran,   109  N.  C.  328. 

MM;    I'arkH  v.  Slatn  Tnd.,  04  N.  E.  28  State    v.    Green,    112    Ind.    462, 

HC)'.';  Slate  V.  Hr.liftnirr.  Ofi  Me.  2.'57,  14  N.  E.  352;  People  v.  Pliippin,  70 

r,'l  Atl.  (543.  Mich.    (5,    37    N.    W.    888;    Slate    v. 

•T'CiMlc  Civil  Prcic.  §  60.  Creditor,  44  Kana.  565,  24  Pac.  346; 


§712 


CORPOKATIOXS.  733 


vi;  712.  Proprietary  resources  of  state. — Aii  exception  to  the 
principle  of  equality  between  citizens  of  different  states,  or 
between  residents  and  non-residents,  is  recognised  in  the  mat- 
ter of  the  enjoyment  of  and  participation  in  the  resources  of 
the  state  held  by  it  in  a  quasi-proprietary  capacity.  Wliere 
a  state  institiition  is  supported  by  taxation  of  the  people  of 
the  state,  it  seems  just  that  the  people  of  the  state  may  be  pre- 
ferred, and  that  they  may  have  the  benefits  of  the  institution 
free,  Avhile  non-residents  pay  fees.  So  in  state  universities, 
or  benevolent  and  charitable  institutions.  The  same  rule  has 
also  been  applied  to  the  natural  common  property  of  the  state, 
fish  and  game,  oyster  beds,  etc.,  in  which  a  special  interest  of 
the  inhabitants  of  the  state  is  recognised  by  virtue  of  "citizen- 
ship and  domicil  united."-^ 

COEPOEATIONS.      §§  713-715. 

§  713.  Inequalities  due  to  special  charters. — When  corpora- 
tions were  created  by  special  act  of  the  legislature,  the  charters 
not  infrequently  contained  grants  of  special  powers  and  im- 
munities, and  different  corporations,  even  of  the  same  kind. 
Avere  very  apt  to  differ  from  each  other  in  method  of  organiza- 
tion and  corporate  capacity.  Under  the  system  of  general 
incorporation  laws  these  inequalities  are  greatly  reduced,  but 
where  the  general  incorporation  laws  were  of  narrow  scope, 
one  law  providing  for  one  kind  of  business  or  activity,  another 
for  another  restricted  class,  inequalities  were  sure  to  result. 
So  for  a  long  time, in  New  York  incorporation  for  business 
purposes  required  five  original  members,  for  manufacturing 
purposes  only  three ;  so  the  laws  for  the  incorporation  of 
religious  societies  of  different  denominations  alloAved  different 
amounts  of  property  to  be  held  by  each.^o  Such  inequalities 
between  different  classes  of  corporations  may  still  occur. 

§  714.     Discrimination  in  administration  of  justice. — When 

People  V.   Hasbrouck,   11  Utah   291,  Jones,     1     Wend.     237;     People     v. 

39    Pac.    918;     Craig    v.    Board    of  Lowndes,   130   N.   Y.   455;    State   v. 

Medical    Examiners,    12    Mont.    203,  Medbury,  3  Eh.  I.  138;  Chambers  v. 

29  Pac.  532.  Church,  14  Eh.  I.  398,  51  Am.  Eep. 

29  Corfield  v.   Coryell,  4  Wash.   C.  410;    Commonwealth   v.   Hilton,    174 

C.  371,  1825 ;  McCready  v.  Virginia,  Mass.  29.  54  N.  E.  362.  45  E.  E.  A 

94   IT.    S.    391;    Haney   v.    Compton,  475. 

3(5   X.    ,L   L.    507;    State  v.   Corson  •''o  See  §  466,  supra. 
(X.  .L  L.)    50  Atl,  780;   Kogers  v. 


734  CLASSIFICATION   AND  UISCKIMI.XATIOA'.  §  71J. 

we  eouipai'L'  corporations  wilh  iudividuals  it  mast  be  borne  in 
mind  that  there  is  a  large  bod}'  of  corporate  law  without 
analogy  in  the  law  relating  to  individuals,  uamel}',  that  relating 
to  corporate  organisation  and  methods  of  action.  ^Moreover; 
since  the  liability  of  corporations  is  limited,  it  would  seem 
justifiable  to  subject  them  to  special  rules  to  enforce  prompt 
payment  of  their  debts.  The  decision  in  Gulf,  etc.,  R.  R.  Co.  v. 
EUis^^  is  not  contrary  to  this  view,  since  in  that  ease  the 
statute  discriminated  against  railroad  companies  as  debtors, 
and  thus  singled  them  out  from  other  corporations  in  a  matter 
on  which  the  peculiar  nature  of  the  railroad  business  had  no 
bearing.  Special  considerations,  however,  M'ould  seem  to  apply 
to  claims  against  insurance  companies,  which  therefore  may 
be  singled  out  in  legislation  imposing  penalties  for  vexatious 
delays  in  paying  policies.'^-  A  statute  of  ^Mississippi,  allowing 
an  attorney's  fee  to  be  taxed  against  the  unsuccessful  appellant 
whenever  an  appeal  shall  be  taken  from  the  judgment  of  any 
eoiu't  in  any  action  for  damages  brought  by  any  citizen  of 
the  state  against  any  cori)oralion,  was  held  to  be  unconstitu- 
tional. The  legislature  desired  to  avoid  discrimination  be- 
tween parties  to  the  same  action  and  therefo}-e  allowed  the 
attorney's  fee.  whether  the  apponl  was  tak(>n  by  the  corjiora- 
tions  or  the  citizens:  but  in  doing  so  was  held  to  have  discrim- 
inated arbitrarily  Intwen  unsuccessful  appellai^ts  in  dift'erent 
jH'tions  according  to  the  character  of  the  defendant. ^-"^  If  the 
attorney's  fee  hiid  Itrcn  ;iII<»\\(m|  only  ;iL:;iiiist  the  corporations 
it  njight  have  Ix'cii  contended  with  considerable  force,  that 
where  a  class  of  litigants  is  accorded  the  pi-ivilege  of  liiniled 
liability,  its  riglit  1o  ;ippc,il  mny  be  restrained  by  reasonable 
e(»n(litions  not  generally  applicable  to  appellants;'"  and  so  a 
discrimination  ayainst  eorporntions  might  be  justified  where 
liiey  interpose  vexatious  oi-  dil;itory  defenses,  though  jx'rhaps 
not  whi're  they  op|)ose  a  claim  in  good  faith.-'"'  ('oi-])ora1  ions 
beinp   entitled    to'  ('(pial   justice    wilh    individursls,    every    pi-o- 

-•>  lar,  f.  s.  1.00.  •■'■■•  chicji^ru,  St.  l.  &  y.  o.  -r.  Cn. 

■"■- Union    Confral    Life    liiHuraiicc  v.  MdSH,  (50  :\!iss.  fi^  1. 
y.  CliowiiinK,  SO  Ti-x.  054,  L'O  H.  ••'•  TImh     view,     liowincr.     was     iml 

'.•HU,    24   L.    H,    A.    r,0|;    i'^idrlily  tak.-ii   l.y  fin;  MissisHippi  court. 
M.ii.    Lifi«    FnK.    Co.    V,    .Mcttirr,    ISfi  ■!■■•  Ildckinjr     Valloy     Coal     Co.     v. 

r.    S.    308;    FarnuTs'    &    .Mcn-lianls  Uohhof,   .I.S   Oh.   St.    12,    29   1>.    I{.   A. 

lux.  '•(,,  V,  DoImu'v,  (\2  \H».   L'13,  8(5  .".SO. 

\   w.  Ki-n,  s.  r.  I  HO  IT.  s.  :!ni.  i: 
Uiiv.   F.!.  V'l,  uiil,  note. 


^  715  CORPORATE  RIGHTS.  735 

cedural  discrimination  should  be  based  on  soiui'  eonsideration 
peculiar  to  the  nature  of  the  body  corporate."" 

§  715.  Corporate  capacity  and  vested  rights.— In  the  field 
of  the  police  power,  the  chief  point  in  which  corporations  differ 
from  individuals  is  their  limited  capacity.  They  can  engage 
only  in  such  lines  of  activitj^  as  are  marked  out  by  law,  they 
cannot  go  beyond  the  objects  set  out  in  their  charter,  and 
under  some  jurisdictions  cannot  under  one  charter  combine 
diverse  and  distinct  objects.^"  The  legislature  may  at  its 
pleasure  vary  or  increase  these  limitations,  and  in  this  respect 
a  very  important  inequality  exists  between  corporations  and 
individuals. 

It  is,  on  the  other  hand,  clear  that  where  a  corporation  has, 
in  accordance  with  its  charter  powers,  invested  funds  in  some 
enterprise,  it  is  entitled  to  the  protection  of  the  law  in  the 
enjoyment  of  its  property,  and  in  its  dealings  with  others 
incidental  to  such  enjoyment,  in  the  same  manner  .as  indi- 
viduals. It  was  held  in  Arkansas  and  Rhode  Island  that  laws 
regarding  the  mode  or  time  of  payment  of  wages  may  be 
enacted  Avith  regard  to  corporations,  or  special  classes  of  cor- 
porations only,  under  the  reserved  power  to  alter  corporate 
charters  ;^^  but  the  opposite  view  is  taken  in  other  states. ^^ 

The  Supreme  Court  of  the  United  States  strongly  supports 
the  doctrine  that  corporations  as  owners  of  property  may  not 
be  discriminated  against.  "It  is  now  well  settled  that  cor- 
porations are  persons  wnthin  the  meaning  of  the  constitutional 
provisions  forbidding  the  deprivation  of  property  without  due 
process  of  law,  as  well  as  a  denial  of  the  equal  protection  of  the 
laws.  "40  In  the  different  railroad  rate  cases  the  position  oC 
the  state  derives  no  strength  from  the  fact  that  legislation  i ; 
directed  against  corporations,  the  corporate  propert.y  being 
treated  as  the  property  of  the  shareholders.  Moreover  '"the 
power  to  enact  legislation  of  this  character  cannot  be  founded 


36 


The    legislature    may    recognise  v.  Browne  &  Sharpe  Mfg.  Co.,  18  R. 

the  local  influence  of  large  corpora-  T.  16. 

tions  by  allowing  a  change  of  venue  so  Johnson  v.  Goodyear  &c.  Miniu;:r 

from  the  place  where  they  keep  their  Co.,  127  Cal.  4,  59  Pae.  304;  Braec- 

principal  office;    Snell   v.   Cincinnati  ^-ille  Coal  Co.  v.  People,  147  III.  66. 
Street  R.  R.  Co.,  60  Oh.  St.  256,  54         -lo  Covington   &c.    Turnpike   Co.    v. 

^^  E.  270.  Sandford,  164  U.  S.  578;   also  GuH 

^T  Supra,  §  360.  &c.  R.  Co.  v.  Ellis,   165  U.  S.   15(\ 

38  Leep  v.  St.  Louis  &  I.  M.  R.  Co.,  154. 
58  Ark.  407,  23  L.  R.  A.  264;  State 


736  CLASSIFICATION  AND  DISCEIMIXATIOX.  §  71G 

upon  the  mere  fact  that  the  thiug  affected  is  a  corporation, 
even  when  the  legislature  has  power  to  amend  or  repeal  the 
charter  thereof.  The  power  to  alter  or  amend  does  not  extend 
to  the  taking  of  the  property  of  the  corporation  either  by 
confiscation  or  indirectly  by  other  means.  "^^ 

In  every  case  where  a  restraint  is  imposed  on  corporations 
alone,  the  question  ought  to  be:  would  the  evil  or  danger 
sought  to  be  met  be  exactly  the  same  if  the  owner  of  the 
business  or  property  would  be  an  individual  ?  If  so,  the  discrim- 
ination is  unjustifiable.  But  if  some  kind  of  business  may 
he  subjected  to  special  regulations  by  reason  of  its  special 
(  ircumstances,  and  if  such  business  happens  to  be  carried  on 
n:ily  by  corporations,  it  is  no  objection  that  the  statute  does 
iM.t  speak  of  individuals,  so  in  the  case  of  the  railroad  or  insur- 
business.'*^ 

FOREIGN  CORPORATIONS.      §§  716-720. 

§  716.  Foreign  corporations  not  engaged  in  conunerce. — A 
sharp  distinction  must  be  made  between  such  foreign  corpora- 
tions as  do  not  carry  on  commerce  with  other  states  or  nations, 
and  such  as  do. 

Foreign  corporations  which  do  not  carry  on  commerce : 
insurance  companies,  banking,  mining  and  manufacturing  coi-- 
jjorations,  may  be  forbidden  to  do  any  business  within  the  stat(\ 
••it her  thrf)ugh  their  officers,  or  through  agents  or  brokers,  or 
Ihoy  may  be  admitted  on  such  conditions  as  the  state  chooses 
1o  inipose.^^ 

The  state  may  discriminate  against  them  in  favor  of  domestic 
<<»rporatioiis  (U)ing  the  like  business,  and  may  impose  addi- 
liomil  restraints  as  a  condition  of  permitting  a  continuance  of 

*•  Lake  Rliore  &  M.  S.  R.  Co.  v.  otlicr  corporatioiis "  was  sustained  as 

Hmitli,  173  U.  S.  084,  01)8.  to  niilroad  corporations.     Pittsburjih 

♦2  Hoo  liallai"!   v.   MlNBiHsippi   Cot-  &c.    R.    R.   Co.    v.    Montgomery,    If)!! 

ton    Oil   Co.    (MisH.),    :M    Sr.n.    FiXX  liul.  1;  Tiillia  v.  Lake  Erie  &  W.  Ri 

In  thi«  case  it  was  hold  iinconHtitu-  R.  ('o.,  17.1  TT.  S.  348. 

tWinal  to  mn^'Io  out  ('(trporatioiiH  for  •••'' lloojjer  v.  California,  LIS  IT.  S. 

ilio  ubrojjalion  of  the  fellow  servant  MR;   Nutting  v.   Massadiusotts,   IS.T 

rule,   for  uh  to  that   rule,  corporate  V.  S.  nn.H.     The  judtrment  of  an  ad- 

and      individual      employers      stand  rniniHirative    oflicor    in    ilclcrmiiiiii)^ 

KJiko;  otherwine  if  railroad  corpora-  the  existence  of  statutory  condilions 

,, |..,,|    },p,,n    HJn^ded    out,    their  may    tlicreforo    l»e    mailo    conclusive. 

I                 lielnjj  eH|iecially   hazardous.  Provident    Sav,    Tiifo    Ass.    Soc.     v. 

In    Indiana    the    abrogation    of    the  Cutting',  181  Mass.  201,  (5R  N.  K.  43.3. 

dc   with    regard    to   "railroa<l   ;ind 


§  717  FOREIGN  CORPORATIONS.  Y37 

the  business,'*'*  but  it  cannot  forbid  its  citizens  to  deal  with 
such  corporations  when  such  dealings  are  possible  without 
any  act  done  by  the  corporation  or  in  its  behalf  by  agents  or 
brokers,  wathin  the  prohibited  territory,  as  by  effecting  insur- 
ance in  a  foreign  company  by  a  letter  sent  through  the  mails."*-'^ 
The  only  condition  that  may  not  be  imposed  upon  a  foreign  cor- 
poration is  the  surrender  of  rights  enjoyed  under  the  federal 
constitution,  especially  of  the  right  to  resort  to  the  federal 
courts  or  to  have  actions  against  it  removed  to  them,'**''  but 
the  state  has  a  right  to  exclude  a  foreign  corporation,  although 
the  reason  for  the  exclusion  is  that  the  corporation  resorts 
to  the  federal  courts.'*"  There  is  no  state  legislation  which 
absolutely  excludes  foreign  corporations,  or  imposes  pro- 
hibitive conditions  upon  their  admission ;  on  the  contrary'',  the 
states  show  great  liberality  toward  corporations  organised  in 
other  states,  and  in  some  cases  courts  have  held  them  to  be 
relieved  of  restraints  imposed  on  domestic  corporations  of 
the  like  character.'*^  Nor  is  it  regarded  unlawful  for  the 
citizens  of  one  state  to  seek  incorporation  in  another  state 
and  then  do  business  in  their  own  state.^^ 

§  717.  Foreign  corporations  engaged  in  commerce. — On  the 
other  hand,  foreign  corporations  carrying  on  interstate  or 
foreign  commerce — steamship,  railroad,  telegraph  and  express 
companies — have  an  absolute  right  to  do  business  with  any 
state  without  license  or  any  condition  as  to  capital,  subject 
only  to  taxes  upon  the  physical  property''  they  have  within  the 
state,  and  to  such  restraints  as  are  required  to  preserve  public- 
safety  and  order. ^^^ 

4*  Paul  V.  Virginia,  8  Wall.  168;  *»  Oakdale  Mfg.,  Co.  v.  Garst,   18 

Ducat    V.    Chicago,    10    Wall.    410;  R.  I.  484. 

Philadelphia     Fire     Association     v.  •''.o  Western  Union  Telegraph  Co.  v. 

New  York,  119  U.  S.  110;  Pembina,  Texas,    105    U.    S.    460;    Gloucester 

&c.,  Co.  V.  Pennsylvania,   125  U.  S.  Ferry   Co.    v.   Pa.,    114    U.    S.    196; 

181.  Philadelphia  &  Sou.   Mail  S.  S.  Co. 

45  Allgeyer  V.  Louisiana,  165  U.  S.  v     Pennsylvania,     122    U.    S.    326; 

r,7S.  ]\reCall    v.    California,     136    U.     S. 

40  Home   Insurance   Co.   v.    Morse,  104;     Crutcher     v.     Kentucky,     141 

-.'O  Wall.  445.  TT.  S.  47.     The  case  of  Louisville  & 

47  Doyle    V.    Continental    Ins.    Co.,  Nashville  R.  R.  Co.  v.  Kentucky,  161 

94  U.  S.  535.  U.  S.  677,  supports  the  doctrine  that 

4S  See  Vanderpoel  v.  Gorman,  140  interstate  commerce  corporations  are 

N.  Y.  563.  subject   to   the  police  power   of   the 

47 


r:38 


CLASSIFICATION  AND  l)l«c:?lMINATION.  §  718 


In  so  iar  as  the  cases  cited  do  not  relate  to  taxation,  their 
effect  is  that  foreign  corporations  may  send  goods  and  agents 
into  any  state  without  a  license  from  state  authorities.  In 
doing  so  the  corporation  does  not  itself  enter  the  other  state.^ 
It  should  be  borne  in  mind  that  corporations  consist  of  physical 
persons;  these  physical  persons,  domiciled  in  one  state,  have 
under  the  federal  constitution  the  right  to  send  merchandise 
and  agents  into  another  state  for  the  purpose  of  commerce. 
In  Crutcher  v.  Kentucky  the  court  says:  "The  accession  of 
mere  corporate  facilities,  as  a  matter  of  convenience  in  carry- 
ing on  their  business,  cannot  have  the  effect  of  depriving  them 
of  such  right. ' '  In  other  words,  if  an  express  company  may 
carry  goods  from  New  York  to  Kentucky,  and  for  that  purpose 
inayestablish  an  agency  in  Kentucky,  the  fact  that  it  is  incor- 
porated is  for  many  purposes  indifferent. 

^  718.  Exercising  corporate  powers  v^^ithin  state. — The  right 
to  carry  on  eommerce  may  be  claimed  irrespectively  of  the 
assertion  of  any  particular  corporate  privileges  which  the  asso- 
••iated  individuals  may  happen  to  possess.  But  can  the  same 
position  be  successfully  maintained  where  corporate  privileges 
are  claimed  within  the  state?  The  simplest  case  is  that  the 
commerce  cannot  he  carried  on  without  the  holding  of  fixed 
physicjil  j»i-(>pri-ly  within  the  state,  as  in  the  case  of  a  railroad 
company  seeking  to  extend  its  line  into  another  state.  Can 
this  be  done  without  authority  from  the  state?  While  the 
freetlom  of  interstate  commerce  is  not  satisfied  by  the  plea 
that  residents  are  subji-cted  ti)  the  s.iiiie  bunb'ns  n^gnrding 
<b»niestic  conunerce  as  ;iri'  sought  to  be  imposed  ui)on  non- 
resi(b'nts  with  regard  to  interstnte  or  foreign  commerce, ^  yet 
it  has  never  been  contrnd.d  tli.M  if  a  right  beai'ing  upon  inter- 
state  coniniefce   ni;iy    lie    withheld    IVoiii    I'csiih'ids   su(di    right 

iii;i\-  hr  fdnii 1   by  non-resideids.      It    I'oUows  Ih;i1    if  if    is  not 

chiimed  th;i1  r-rsidi-nts  may  without  ;ndhofity  roi-iii  Ihemscdves 
itito  a  corporation  to  liuiM  a  line  of  railroad,  though  it  is  to  be 
an  instrunK'nt  of  intei-state  conuuerce.  such  (d;iini  c;in  still 
h'ss  be  iii.'ide  for  non-residents.     No  one  would  deny  this  wliei-e 

Ktiilf  in  whii'ti  tlicy  operate;   V)iit  tin-  cfirporntions   iloTnestic,   hihI    imt    fm-- 

•  xereiw    of    Hfiite    millioritv    in    tlint  fiRH. 

eiinr  wnn  tlio  protiitiition  of  tlio  eon-  i  Ponnsylvania     v.     Staiulan!     Oil 

Nolidntinn      <>f      competing,'      r:iilroa<l  Co.,   101    I'a.   St.    ll'i. 

rompMtiioH.    ami    fliiw    related    to    Wu-  '■:  T{ol>l)iiis    v.    Slielliy    Connty    Tax- 

oxorrinc    of    powers    on    the    part    of  inj;  DiHtrict,  120  U.  S.  489. 


§  719  FOREIC.N   CORPORATIOXS.  7:10 

it  is  a  question  of  exercising  the  power  of  eminent  domain, -"^ 
but  the  practice  is  the  same  as  to  extension  of  railroad  lines 
into  other  states  generally.  "Without  objectio,!,  so  far,  from 
the  federal  authority,  whether  legislative  or  judicial,  it  has 
become  customary  for  a  state  adjacent  to  the  state  creating 
a  railroad  corporation  to  legislatively  grant  aiithority  to  such 
foreign  corporation  to  enter  its  territory  with  its  road,  to  make 
running  arrangements  with  its  own  railroad,  to  buy  or  lease 
them  or  to  consolidate  with  the  companies  owning  them.  Some- 
times, as  in  the  present  case,  such  foreign  corporation  is 
declared  upon  its  acceptance  of  prescribed  terms  and  condi- 
tions, to  become  a  domestic  corporation  of  such  adjacent  state, 
and  to  be  endowed  with  all  the  rights  and  privileges  enjoyed 
by  similar  corporations  created  by  such  state.  "'^ 

§  719.  Foreign  railroad  companies. — Many  states  provide 
that  foreign  railroad  companies  may  enter  the  state  upon  filing 
their  charters  or  becoming  subject  to  the  law^s  regarding 
domestic  corporations.-''  Practically  these  are  conditions  for 
doing  interstate  business ;  yet  they  have  never  been  ques- 
tioned.*^ Of  course,  the  United  States  may  by  act  of  Congress 
grant  the  like  authority,  and  this  has  been  done  generally 
for  telegraph  companies  establishing  their  lines  along  post 
roads.'^  But  it  cannot  be  said  that  the  non-action  of  Congress 
must  mean  freedom  from  any  license,  for  it  is  well  established 
that  lands  cannot  be  held  in  corporate  capacity  without  the 
authority  of  some  state  creating  the  corporation,  and  the  prin- 
ciple of  freedom  from  the  requirement  of  license  being  neces- 
sarily broken  through,  it  seems  illogical  to  say  that  one  state 
must  accept  the  license  or  authority  of  another  state  when 
such  authority  can  have  no  extra-territorial  operation  except 
by  comity. 

3  As    to    maintaining    ferries    be-  •*  St.   Louis   &   S.   F.   R.   E.   Co.   v. 

tween    two    states,    if    the    right    in  James,  161  U.  S.  545,  555. 

both  is  a  franchise,  see  the  remarks  ^  Stimson  American  Stat.  Law,  IT, 

of  the  Supreme  Court  in  the  case  of  8881. 

the  Gloucester  Ferry  Case,  114  U.  S.  "  See   Commonwealth  v.   Mobile  & 

196.     In  that  case  no  difficulty  was  Oh.  R.  R.  Co.,  23  Ky.  Law  Rep.  784, 

felt  since  in  the  opinion  of  the  Su-  54  L.  R.  A.  916. 

preme  Court  the  running  of  ferries  ^  Act   of   July   24,    1866,    Western 

across  the  Delaware  River  was  free  L^nion  Tel.  Co.  v.  Pensacola,  &c.,  Co., 

under  the  laws  of  Pennsylvania.   See,  96  U.  S.  1. 
however,  Douglas'  Appeal,   118  Pa. 
St.  65. 


740  CLASSIFICATION  AND  DISCRIMINATION.  §  721 

§  720.  Fixed  corporate  property  within  the  state. — The  Su- 
preme Court  reeoguises  a  distinction  between  doing  busi- 
ness in  a  state  on  the  part  of  a  foreign  corporation,  and  isohited 
commercial  transactions  entered  into  from  outside  of  the 
state;*  but  since  the  right  to  keep  an  agency  in  the  state  is 
free  from  state  restraint,  it  seems  that  the  distinction  ought 
to  be  between  doing  business  with  and  doing  business  without 
fixed  corporate  property  witliin  the  state.  If  interstate  com- 
merce can  be  carried  on  in  such  a  waj^  tliat  the  corporation  has 
merely  agencies  in  the  state,  and  does  not  hold  property  there, 
it  cannot  be  placed  under  the  requirement  of  a  license.  But  the 
holding  of  property  is  controllable  by  the  state.  The  case  is 
analogous  to  that  of  aliens:  they  do  not  depend  upon  the 
states  for  their  right  to  carry  on  foreign  commerce  with  and 
in  the  state ;  but  without  state  authority  they  cannot  hold 
land,  though  the  land  be  used  in  connection  with  such  com- 
merce." 

DISCRIMINATION  BASED  ON  DIFFERENCE  OF  ACTS  OR  OCCU- 
PATIONS.    §§  721-738. 

§  721.  Police  power  may  singie  out  particular  evils. — While 
an  ideal  or  perfect  system  of  equality  might  require  a  legis- 
lative treatment  of  all  public  dangers  by  measures  exactly  ade- 
quate 1(»  tlieir  menace,  this  is  manifestly  a  standard  which 
it  is  impossible  to  realise.  The  police  power  has  dealt  and 
deals  with  evils  as  public  sentiment  requires,  and  that  other 
evils  of  a  different  kind  affecting  different  interests  and  having 
(lifTei-cnt  consequences  are  not  drawn  within  the  range  of  legis- 
lation, or  that  they  are  regulated  and  restrained  in  a  different 
manner  and  treated  with  greater  severity  or  leniency,  is  not 
deemed  a  sufficient  reason  to  invalidate  a  measure  otherwise 
lefjitiniiile,  confining  itself  1o  some  ii.itticiilnr  danger.  So  the 
absence  of  any  legislation  against  gambling  would  be  no  argu- 
ment against  li(|Uf»r  legislation,  or  vice  versa.  As  long  as  the 
••vil.s  nre  sufficiently  distinct,  no  question  is  made  of  the  validity 
of  a  partial  or  unequal  exercise  of  Hie  polieo  power. ^" 

•Cooper    Mfg.    Co.    v.    Ferguson,  tlic  domestic  jurisdictiou  leave  part- 

113  U.  8.  727.  nerships  unregulated;  State  v.  Cadi- 

•»  In    the    criHO    of    jiarlnershipH    it  gan,  7.3  Vt.  245,  57  L.  R.  A.  GOG. 

rnnnot    make    any    difTfrriu-e    under  i"  Sen  r.  g.  State  v.  TTogrpivt-r,  ir)2 

tho  InwH  of  whirli  wtntf  they  are  or-  liid.  (\n2,  .'5.'^  N.  E.  021. 
Riiniwd,  n«  long  hh  the  statutes  <>f 


g  7l);>,  DlFFEREXt'i::  OF  ACTS  OR   OCCUPATIONS.  741 

§  722.  Police  power  may  single  out  one  side  of  a  relation. — 
Moreover  for  the  purposes  of  the  police  power  the  same  trans- 
action may  have  very  different  aspects  as  it  concerns  one  or 
the  other  party  thereto ;  with  reference  to  the  one  it  may  be  a 
matter  of  business  or  sufficiently  public  in  character  to  become 
a  legitimate  interest  of  the  community,  while  from  the  point  of 
view  of  the  other  party  it  may  be  of  a  social  or  private  char- 
acter. Thus  engaging  in  or  exhibiting  a  prize  fight  is  different 
from  witnessing  it  and  prostitution  differs  from  visiting  a  pros- 
titute, and  while  the  law  may  take  cognisance  of  the  private 
side  of  the  act,^^  it  need  not  do  so.  Thus  in  the  matter  of 
intoxicating  liquor,  the  law  deals  with  traffic  and  not  with 
consumption.  The  purchaser  is  not  even  regarded  as  a  par- 
ticipant or  accessory  to  the  offense  of  selling.^  2  'pj^g  ^^[^  ^f 
legislation  is  to  reduce  consumption,  but  legislation  can  reach 
consumption  most  efficiently  through  traffic,  and  consumption 
becomes  important  only  where  it  produces  open  or  habitual 
drunkenness.  The  keeper  of  a  gambling  house  or  lottery  need 
not  be  a  gambler,  but  he  may  be  singled  out  for  punishment 
while  the  person  who  gambles  may  be  left  unpunished. ^^  It  is 
legitimate  for  the  police  power  to  attempt  to  r(?strain  tempta- 
tion and  scandal  instead  of  the  individual  acts  constituting 
the  real  evil,  because  the  former  and  subsidiary  evil  is  distinct, 
although  the  policy  results  in  a  different  treatment  of  the  two 
parties  to  the  same  transaction.  The  difference  between  pro- 
fessional or  business  dealing  and  private  acts  affords  full  jus- 
tification for  this  discrimination. 

§  723.  Discrimination  between  similar  evils. — Where  the 
danger  or  evil  presented  by  different  acts  or  conditions  is 
substantially  the  same,  and  legislation  does  not  apply  to  them 
alike,  there  ought  to  be  some  reason  for  the  discrimination. 
Thus  where  a  specific  form  of  danger  requires  specific  remedies 
not  otherwise  applicable,  legislation  applying  specially  to  this 
danger  is  not  only  justifiable,  but,  if  there  is  to  be  regulation, 
inevitable.  Thus  the  laws  requiring  certain  safeguards  in  the 
operation  of  railroads  could  not  be  made  to  apply  to  mines,  or 

"See    III.    Crim.    Code,    §     225;f^  (Tenn.)  135,  1858;  but  in  Tennessee 
State  V.  Botkin,  71  la.  87.  ,   the    prevailing    doctrine    was    subse- 

12  State  V.  Cullins,  53  Kans.  100;      quently  adopted.      Harney  v.   State^ 
Commonwealth  v.  Willard,   22   Pick.     S  Lea  113. 

476;    State  v.  Rand,   51   N.  H.   361.  i3  State  v.  Woodman   (Mont.),  67 

Contra:    State   v.   Bonner,   2   Head.     Pac.  1118. 


742  CLASSIFICATION  AXD  DLSCEIMINATION.  §  724 

vice  versa.  The  validity  of  legislation  restricted  in  this  respect 
to  either  is  therefore  not  questioned.^'*  Where  dangers  and 
evils  presented  in  different  forms  and  relations  are  so  similar 
that  they  may  be  dealt  with  by  like  restraints  and  obligations 
the  chief  reason  for  legitimate  discrimination  lies  in  the  differ- 
ence of  degree  to  which  the  public  interest  is  enlisted.  The 
private  law  is  on  the  whole  independent  of  this  consideration ; 
thus  fraud  is  dealt  with  irrespective  of  form  or  degree  by 
civil  causes  of  action  for  damages,  while  criminal  or  police 
legislation  regarding  fraud  singles  out  certain  practices.  It 
must  be  regarded  as  a  considerable  advance  in  police  legis- 
lation, if  a  general  law  comprehensively  defines  the  various 
forms  of  adulteration  practised  with  regard  to  articles  of  con- 
sumption, even  though  similar  frauds  in  other  kinds  of  mer- 
chandise fail  to  be  reached  by  the  statute.^^  The  same  is  true  of 
other  phases  of  police  legislation,  whether  concerning  public 
health,  safety  or  morals,  or  economic  interests.  The  common 
hiw  in  a  general  and  abstract  manner  deals  with  conditions 
obnoxious  to  the  public  good  (nuisance,  conspiracy,  etc.),  but 
the  generality  of  the  restraint  is  at  the  expense  of  certainty 
and  definiteness;  it  is  generally  inadequate  to  cope  with  evils 
arousing  the  public  interst  which  are  not  so  flagrant  as  io 
amount  to  crimes,  and  it  affords  no  preventive  relief. 

The  police  power  finds  its  peculiar  province  in  the  conditions 
and  measures  which  the  criminal  law  fails  to  rv^ach  and  pro- 
vide for,  and  which  require  a  more  particular  definition  than 
tlie  criminal  law  affords.  It  is  here  that  discrimination  be- 
conu'S  necessary  and  that  the  danger  of  partial  legislation 
arises. 

§  724.  Abstract  classification  according  to  degree  of  dan- 
ger.— Th(!  method  of  discriminaliou  most  in  accordance  with 
the  spirit  of  constitutional  equality  is  that  of  abstract  deter- 
mination, where  it  can  be  applied.  This  would  mean  thnt  the 
condition  is  defined  by  reference  to  the  public  interest  which 
it  affects  and  lln'  degree  of  dnnger  Avhich  it  imports,  so  that 
all  otlier  dangers  of  the  same  kind  and  degree  would  be  cov- 

><"Tlio    Hpwific    roprulatidiiH    for  tioiiw    :im-    not    imposed    upon    other 

one  kind  of  bnnincHH,  which  niriy  he  bi)HiiicH.s  of  ;i  dilTorcnt  kind,"    Soon 

necoMinry   for  the  protection   of  the  Hinfr  v.  Crowley,  113  U.  S.  703. 

jiiilinr-,  can  never  he  the  just  groiinfl  ""'  See  §  280,  supra. 
of    conipliiint    Ijccauae    like    rcetric- 


§  725  ABSTRACT  CLASSlFigATION.  743 

ered  by  the  definition.  A  law  which  should  provide  that  all 
articles  made  of  compound  material,  where  the  compound  is 
not  known  in  the  trade  by  a  distinctive  name,  must,  if  exposed 
for  sale,  be  labeled  in  such  a  manner  as  to  show  the  in- 
gredients and  their  proportion,  would  satisfy  this  standard. 
Manifestly  few  police  statutes  are  framed  in  such  a  general 
wa'y.^^  An  approach  to  such  generalisation  may,  however,  be 
found  where  the  law  defines  by  numbers  or  other  measurable 
quantities.  Where  the  degree  of  danger  depends  upon  the 
extent  to  which  some  practice  is  carried,  this  would  seem  to 
be  a  just  basis  of  discrimination.  But  any  such  limitation  by 
reason  of  being  positive  has  an  element  of  arbitrariness  in  it, 
which  is  inevitable  and  yet  has  furnished  a  ground  for  con- 
demning the  measure.  Thus  some  statutes  for  the  protection 
of  laborers  have  been  confined  to  establishments  in  which  the 
number  of  employees  is  ten  or  more,  and  it  has  been  asked 
what  difference  it  can  make  whether  the  number  is  nine  or 
eleven.^ ''^  But  such  reasoning  would  be  destructive  of  the 
distinction  between  full  age  and  infancy,  and  of  every  other 
positive  limitation  in  law.  The  size  of  a  business  may  have 
no  relation  to  the  evil  contended  with,  as  e.  g,  in  the  regula- 
tion of  charges,!^  but  where  it  has,  a  positive  limitation  on  that 
basis  should  be  regarded  as  unobjectionable.^^  This  has  been 
recognised  by  the  Supreme  Court  with  reference  to  safety 
legislation  for  mines,  which  applied  only  to  mines  in  which 
more  than  five  men  were  employed  at  one  time.^*^ 

§  725.  Classification  by  social  or  economic  groups. — In  many 
cases,  however,  it  is  impracticable  to  define  the  required 
degree  of  danger  in  abstract  terms,  while  it  is  easy  to  indicate 
it  by  reference  to  the  particular  business  or  other  concrete 

16  A  provision  of  so  sweeping  and  license  fees,  held  arbitrary  and  un- 
general  a  character  has  even  been  constitutional,  State  v.  Mitchell 
treated  as  constitutionally  objection-  (Me.),  53  Atl.  887;  but  quere 
able.  Dorsey  v.  State,  38  Tex.  Cr.  whether  it  is  not  the  irresponsibility 
Ap.  527,  40  L.  E.  A.  201.  See  §  41,  of  the  small  dealer  which  calls  for 
supra.  police     regulation.        Certainly     the 

17  State  V.  Haun,  61  Kan.  146.  criticism,   that   the   selection   of   the 

18  Cotting  V.  Kansas  City  St.  Y.  amount  of  $25  rather  than  $24  or 
Co.,  183  U.  S.  79.  $26   shows  the  arbitrariness   of  the 

i!>  A  classification  of  peddlers  ac-  rule,  is  untenable, 

cording  to  the  amount  of  taxes  paid  -o  Consolidated  Coal  Co.  v.  Illinois, 

on  the  stock  of  goods,  residents  pay-  1 85  U.   S.   203 ;   Daniels  v.  Hilgard, 

ing  $25  or  more  being  exempt  from  77  111.  640. 


744  CLASSIFICATION  AND  DISCRIMINATION.  §  726 

form  in  which  it  appears.  The  dangers  with  which  the  police 
power  copes  are  not  divided  into  as  many  different  kinds  or 
degrees  as  there  are  economic  or  social  groups  or  forms  of 
action ;  but  these  groups  or  forms  are  distinguished  by  a  cer- 
tain uniformity  of  practice,  in  which  an  evil  may  assume 
special  magnitude  which  calls  for  regulative  action  by  the 
state.  Therefore  there  is  a  rough  correspondence  between 
group  and  degree  of  danger,  and  the  greater  degree  of  danger 
peculiar  to  a  group  will  justify  its  being  singled  out  for  police 
restraint.  Thus  it  is  generally  conceded  that  the  operation  of 
railroads  is  attended  with  so  much  risk  of  injury  that  special 
rules  of  liability  are  justifiable,  and  it  is  no  objection  that  the 
danger  is  not  or  cannot  be  defined  abstractly,  Muthout  refer- 
enda to  the  class.  It  may,  however,  be  that  the  particular  group 
is  singled  out  simply  because  it  happens  to  arouse  public  atten- 
tion, or  because  the  restraint  may  serve  some  ulterior  interest 
by  which  the  business  is  affected.  Classification  on  the  basis 
of  social  or  economic  groups  thus  easily  becomes  discrimina- 
tion in  the  objectionable  sense,  and  its  validity  is  then  ques- 
tioned. The  constitutional  problem  is  one  of  the  utmost 
imjiortance:  Is  classification  legitimate?  Is  it  consistent  with 
i'<|Mality?  Classification  is  undoubtedly  a  legitimate  legislative 
fiuictinii.  but  it  is  also  clear  that  it  can  be  abused  in  such  a 
manner  as  to  produce  substantial  inequality  and  favoritism  or 
oppression.  In  consequence  of  this  liability  to  abuse,  legis- 
lative classification  has  in  recent  times  been  subjected  to  a 
strong  judicial  control  ;-^  and  it  is  necessary  to  inquire  whether 
tliis  control  has  proceeded  upon  definite  constitutional  prin- 
cii)l('s  difl'tTcntiating  lawful  from  unlawful  discrimination. 

§  726.  Synopsis  of  decisions. — It  will  be  of  advantage  to  give 
a  brief  syn()i)sis  of  the  ])rincipal  cases  in  which  the  question 
of  discriniinatif)n  has  been  raised  and  decider! ;  most  of  these 
cases  liave  been  adverted  to  and  commented  U])on  in  other 
connections. 

§  727.  Legislation  for  the  prevention  of  accidents. — Laws 
have  lieeii  ii|>lir|(|  creiiling,  willi  regard  to  raiii'owd  eonipMiiies 
only,  rules  of  liability  for  injury  to  ])erson  or  property  which 

2>  K*>r  one  of  tlin  pnrlicst  cnsPH  in  of|n;il   nalinnl   rifjhts,   soo   People   v. 

wbirh  cluKH  loKiHlufion    (an   art.   for-  Walhritl^re,    0    Cow.     (N.    Y.)     r>]2, 

bidding   attorncyH   to   buy   cIiohch   in  ISL'C);  Vnit  the  court  diHpoHCil  of  this 

nrtion)  wan  iui[)ugne(l  as  contrary  to  coutention  with  a  few  words. 


§  727  SINGLING  OUT  RAILROAD   COMPANIES.  745 

do  not  exist  at  common  law :  in  case  of  injury  through  acts  of 
fellow  servants  ;22  in  case  of  live  stock  killed  or  injured  ;23  in 
case  of  fire  caused  by  sparks  from  locomotives.^-*  The  special 
risk  incident  to  the  operation  of  railroads  is  held  to  justify 
the  imposition  of  special  duties.  On  the  other  hand,  a  boiler 
inspector's  act  may  exempt  from  its  operation  railroad  loco- 
motives and  railroad  engineers,^^  the  discrimination  being 
perhaps  justified  by  the  greater  difficulty  in  carrying  out  th? 
inspection  where  engines  are  constantly  moving  from  place  to 
place. 

For  obvious  reasons  it  is  legitimate  to  distinguish  between 
longer  and  shorter  roads  in  the  matter  of  safeguards  against 
certain  accidents  which  are  more  liable  to  happen  on  the  for- 
mer.26  By  analogy,  legislation  for  prevention  of  accidents  in 
mines  may  except  those  which  employ  a  very  small  number 
of  miners.^'^ 

The  allowance  of  extra  costs  or  attorney's  fees  to  the  suc- 
cessful plaintiff  in  actions  against  railroad  companies  for 
injuries  is  sustained  in  some  states^s  and  condemned  in 
others.29  The  United  States  Supreme  Court  upholds  this  dis- 
crimination,^*^  and  in  this  connection  suggests  a  distinction 
between  special  legislation  against  railroad  companies  relating 
to  the  recovery  of  claims  in  general,  and  relating  to  the  recov- 
ery of  claims  which  are  in  some  way  connected  with  the  haz- 
ardous nature  of  the  railroad  business.  The  railroad  company 
may  not  be  discriminated  against  in  so  far  as  it  is  merely  a 

22  Missouri  Pacific  R.  R.  Co.  v.  Mower,  16  Kan.  573;  Johnson  v. 
Mackey,  127  U.  S.  205.  Chicago,  M.  &  St.  P.  R.  R.  Co.,   29 

23  Missouri  Pacific  R.  E.  Co.  v.  Minn.  425,  13  N.  W.  673;  Illinois 
Humes,  115  U.  S.  512;  Minneapolis  Central  R.  R.  Co.  v.  Crider,  91  Tenn. 
&  St.  Louis  R.  R.  Co.  v.  Beckwith,  489,  19  S.  W.  618;  Gulf,  &e.,  R.  R. 
129  IJ.  S.  26;  Minneapolis  &  St.  Co.  v.  Ellis  (Tex.),  18  S.  W.  723, 
Louis  R.  R.  Co.  V.  Emmons,  149  U.  17  L.  R.  A.  286;  Peoria,  &c.,  R.  R. 
S.  364.  Co.   V.   Duggan,   109    111.   537;    Per- 

24  St.  Louis  &  San  Francisco  R.  kins  v.  St.  Louis  &  Iron  Mountain 
Co.  V.  Mathews,  165  IJ.  S.  1.  R.  R.  Co.,  103  Mo.  52. 

25  State  V.  McMahon,  65  Minn.  20  Wilder  v.  Chicago,  C.  &  W.  INF. 
453,  68  N.  W.  77.  R.    E.    Co.,    70    Mich.    382;    South. 

26  New  York,  N.  H.  &  H.  R.  R.  &  N.  Ala.  R.  R.  Co.  v.  Morris,  65 
Co.  V.  New  York,  165  U.  S.  628.  Ala.  193. 

27  Consolidated  Coal  Co.  v.  Illi-  so  Atchison,  &e.,  E.  Co.  v. 
nois,  185  U.  S.  203.  Matthews,  174  U.  S.  96. 

28  Kansas    Pacific    E.    R.    Co.    v. 


74G  CLASSIFICATION  AND  DISCEIMINATIOX.  §  728 

debtor.^i  The  recovery  of  debts  as  such  belongs  to  the  admiu- 
istratiou  of  justice  aud  the  distinction  drawn  by  the  court 
may  be  taken  to  mean  that  in  the  administration  of  justice 
perfect  equality  between  debtor  and  creditor,  or  between  the 
two  parties  to  litigation,  must  be  observed,22  ^^yIuIb  in  the 
exercise  of  the  police  power  discrimination  is  legitimate  if  its 
purpose  is  to  induce  greater  care  against  accident. •^•'^ 

$  728.  Sanitary  legislation. — A  statute  of  Illinois^^  made  it 
unlawful  for  more  than  six  persons  to  occupy  the  same  room 
for  sleeping  purposes  at  the  same  time  in  any  lodging  house 
in  any  city  of  100,000  inhabitants  or  more.  The  act  was  de- 
clared unconstitutional  because  it  discriminated  between  keep- 
ers of  lodging  houses  and  keepers  of  inns  and  boarding 
houses,^-'*  and  the  statute  was  thereupon  amended  so  as  to 
include  these  classes.^^  The  court  said :  "If  intended  as  a 
measure  to  protect  health,  tlie  act  should  have  been  directed 
against  the  evil  which  threatens  to  introduce  sickness  or  dis- 
ease, whether  found  in  a  lodging  house,  boarding  house  or 
hotel,  and  as  its  penalties  are  not  so  leveled,  it  can  l)ut  be 
regarded  as  partial  and  discriminatory  legislation."  But  if 
a  lodging  liouse  is  one  in  which  persons,  though  strangers  to 
t'ach  otlit'i',  are  allowed  to  inhabit  one  common  room,"*^'  the 
evil  attempted  to  be  remedied  hardly  seems  to  extend  to  hotels 
or  boarding  houses.     The  obnoxious  condition  may  prevail  in 

3>  Gulf,  &(•.,  R.  R.  Co.  V.  Ellis,  165  sured  are  entitled  to  special  consid- 

U.  S.  ]')().  oration.     The  Supreme  Court  of  the 

S2  See,  however,  as  to  corporations,  United   States    upholds   also    legisla- 

8  714,  supra.  tion     granting     an     attorney's     fee 

33  Sf o  Randolph  v.  Builder's,  &c.,  against  an  insurance  conij)any  iinsue- 

Supply   Co.,    106   Ala.    ."jOl,    17   Sou.  rossfully    defending    an    action    for 

7.T1  ;  ('hair  Co.  v.  Runnels,  77   Mich,  total    loss   in   case  of  fire  insurance. 

104,  43  .\.  W.  1006.     As  to  penalty  I'lirincrs'    &    Merchants'    Insurance 

for    not    paying    promptly    life    in-  (Jompany  v.  Dobney,  1S9  U.  S.  301, 

Muninco    ixdicies    see    Union    Central  S.  C.  below,  62  Neb.  213,  86  N.  W. 

I>ifp   InHurancc  Co.  v.  Chowniiig,  Sfi  1070.     The  decision  in  Gulf,  &c.,  R. 

Tm.  654,  26  S.  W.  082,  24  L.  R.  A.  h\  <(..  v.   Kills  is  not  referred  to. 

504;     Fidelity    Mat.    Life    Ass'n.    v.  -n  April  21,  1899. 

MottiiT,  IHf)  U.  H.  308.     If  the  delay  -i'' Bailey  v.  People.  I'.id   111.  L'S,  60 

\n  vcxntiouH   anri    not   just  i fled    by   a  N.  IC.  98. 

iKinn     fide    defence,    fhf    discriniina-  "•'•  L.iws   1901,  j).  304. 

•  inn    aK"i'i)*t     ''f''    insHrance    coinpa-  ■'•  Knglisli     I'nMii'     Health     Act,    § 

nif-n    neemH    juNtiflablc    since    claims  89. 
nitninnt  them  on  the  part  of  the  in- 


§  729  DECISIONS     REGARDING   DISCRIMINATION.  747 

private  tenements;  but  the  discrimination  between  the  busi- 
ness of  letting  rooms  for  lodging  and  conditions  of  private 
living  is  a  legitimate  one  under  the  police  power,  and  would 
probably  be  respected  by  the  courts. 

§  729.  Public  order. — Where  a  permit  was  required  for 
using  the  public  streets  for  processions,  an  exception  made  in 
favor  of  funeral  processions,  lire  companies,  state  militia  and 
political  parties,  was  held  to  constitute  a  discrimination  fatal 
to  the  whole  regulation.-"^  In  this  case  there;  was  also  an 
unlawful  delegation  of  uncontrolled  discretion  to  adminis- 
trative authorities.  A  similar  discrimination  between  different 
kinds  of  processions  in  IMassachusetts  was  not  questioned. •"^'^ 

A  statute  of  Illinois  forbidding  the  use  of  the  nntional  flag 
for  advertising  purposes  made  an  exception  in  favor  of  art 
exhibitions.  It  was  declared  unconstitutional,  partly  upon 
that  ground.'io  The  fact  that  an  art  exhibition  appeals  to 
higher  sentiments  than  mercantile  advertising  might  have 
been  held  to  justify  the  discrimination. 

§  730.  Legislation  against  gambling. — A  statute  of  ^Missouri 
was  upheld  which  punished  bookmaking  and  pool  selling  on 
events  occurring  beyond  the  state.'^^  The  court  said  that  book- 
making  on  events  occurring  within  the  state  was  not  thereby 
sanctioned,  that  a  police  statute  need  not  necessarily  deal  with 
the  wdiole  of  a  recognised  evil,  and  that  the  statute  did  not 
strike  at  a  class  of  persons,  but  at  a  class  of  transactions.  So 
an  act  was  sustained  in  Illinois  punishing  bookmaking  and 
pool  selling,  and  containing  a  proviso  that  it  should  not  apply 
to  the  actual  enclosure  of  a  fair  or  race  track  association 
during  the  time  of  the  meetings,  the  court  holding  that  the 
bets  made  on  the  race  tracks  were  left  to  the  prohibition  of 
the  general  statutes.^  2  j^  Missouri  a  discrimination  in  favor 
of  bookmaking  on  race  courses  was  first  condemned,  and  later 
on,  upon  a  very  slight  distinction,  sustained.'*^     If  the  evil  of 

38  State  V.  Bering,  84  Wis.  585.  42  Swigart  v.  People,  154  III.  284. 

30  Com.  V.  Plaistecl,  148  Mass.  375,  -t3  State  v.  Walsh,  136  Mo.  400,  37 

19  N.  E.  224,  2  L.  R.  A.  142.  S.  W.  1112,  35  L.  R.  A.  231;  State  v. 

loRohstrat  v.  People,  185  111.  133,  Thompson,  160  Mo.  333.  54  L.  R.  A. 

57  N.  E.  41,  49  L.  R.  A.  181;  sec  §  950;  the  act  of  1S97,  which  was  up- 

383,  supra.  held,  diifered  from  the  act  of  1895 

■ti  State  V.  Burgdoerfer,  107  Mo.  1,  in  the  fact  that  it  required  a  license; 

34  L.  R.  A.  846.  it  really  added  therefore  to  the  dis- 


74S  CLASSIFICATIOX  AND  DISCEIMINATION.  §  731 

betting  can  be  reduced  by  localising  it,  this  should  be  held  a 
sufficient  ground  for  discrimination.  The  Criminal  Code  of 
Illinois-*^  pimishes  the  making  of  contracts  to  have  or  give  the 
option  to  sell  or  buy  at  a  future  time  any  grain  or  other  com- 
modity, stock  of  any  railroad  or  other  company,  or  gold.  The 
Supreme  Court  of  Illinois,  treating  the  statute  as  referring 
only  to  the  specified  articles  of  property,  sustained  it,  because 
the  remedy  need  only  be  as  comprehensive  as  the  evil  the  law 
designed  to  remove.  "It  is  not  indispensable,  in  order  to  be 
constitutional  the  section  should  embrace  all  kinds  of  personal 
property  Avhether  such  kinds  of  personal  property''  had  usually 
or  commonly  been  the  subject  of  option  dealing  or  not."^^ 

§  731.  Legislation  against  fraud. — It  is  not  heid  to  be  unjust 
discrimination  that  the  law  singles  out  for  punishment  fraud 
connnitted  against  or  in  a  particular  kind  of  business.'*'^  Thus 
tlie  law  may  punish  those  who  by  deception  obtain  board  or 
lodging  in  any  hotel,  while  it  has  no  similar  provision  for  the 
ju-otection  of  boarding  houses.^^  The  law  may  single  out 
bankers  for  punishment  for  receiving  deposits  when  in- 
solvent ■,^^  but  it  may  not  make  a  separate  crime  of  offenses 
committed  against  a  particular  bank  by  its  officers.^''  The  law 
may  forbid  the  use  of  harmless  coloring  matter  in  oleomar- 
garine, while  allowing  it  in  butter.'^o  If  the  practice  of  coloring 
winter  butter  has  been  carried  on  so  long  as  to  be  regarded 
legitimate,  it  may  be  said  that  the  public  is  not  defrauded 
therel)y. 

si  732.  Licensing  occupations. — In  Ohio  an  act  which  re- 
quired all  tliosi!  engaging  in  the  business  of  plumbing  to  secure 
n  license  but  pi-ovided  that  in  case  of  a  firm  or  corjioration 
the  examination  and  licensing  of  any  one  member  of  such 
(irm  or  the  manager  of  the  corporation  should  satisfy  the  re- 

riiminalion    ai-corcliiic    to    tlic    phici-  1  r.iiuliiloiit    i)r:uiii'es,    111.    ('r.    Coile 

the    fiirlliiT    (liHcriniiiintioii    of    ]>cr-  117,  ILT)!). 

Honnl  uclcction.  ••t  Siutc  v.  Khifrslov,  108  Mo.  13.'5, 

**8   130.  IS  S.  W.  904. 

<5Hooth  V.  People,  ISr.   III.  4.1,  r)7  is  Baker  v.  Stale,  r>\  Wis.  iUJS,   I'J 

N.    E.    708;    tlie    Siipr<>me    Court,    of  N.    W.    iL' ;    .Meadowc-roft    v.    People, 

tho  United  Sfnfcn  in  RUHtnininjr  MiIh  3(13  m.  r^i]^  45  n,  ]i].  303. 
<l««'iMion  (lid  not  advert,  to  the  quca-  ■•"  Piidd  v.  State,  3  llumi)li.   fsr,. 

tion    of   efiiiality    or    dlBorimination ;  '•"  ('a))ital  City   Oairv  Co.  v.  Oliio, 

Hooth  V.  IllinoiH,  1,S4  IT.  S.  A^r,.  183  U.  S.  USS. 

♦"Hoc  for  Bpwific  enumeration  of 


§  733  DECISIOXS  liECiAKDlXG    DliSClilMlAATJON.  74'j 

(luirements  of  the  act,  was  held  to  constitute  an  invalid  dis- 
crimination.' Tt  is  to  be  presumed  that  if  the  act  had  [)rovided 
that  the  members  of  the  lirm  or  corporation  not  examined 
should  not  engage  directly  in  the  work  of  plumbing,  it  might 
have  been  upheld. 

In  i\Iinnesota  an  act  Avhicli  exempted  from  certain  restric- 
tions on  peddling,  manufacturers,  mechanics,  nurserymen, 
farmers, and  butchers  selling  their  own  wares,  was  for  that 
reason  declared  to  be  void. 2  The  decision  ignores  the  fact  that 
the  policy  of  the  legislation  regarding  peddlers  is  determined 
by  the  lack  of  settlement  of  those  who  follow  the  business,  and 
tlint  this  objection  does  not  apply  to  the  classes  excepted  by 
the  act.  In  Iowa  the  exemption  of  persons  who  have  served 
in  the  union  army  or  navy,  from  the  payment  of  a  license  fee 
for  peddling,  has  been  hold  unconstitutional.^ 

:<  733.  Regulation  of  rates  and  charges. — In  the  regulation 
of  railroad  rates  the  legislature  may  classify  railroads  accord- 
ing to  the  amount  of  business  or  according  to  the  length  of  the 
line  of  the  railroad,'*  but  a  business  not  enjoying  special  priv- 
ileges may  not  be  discriminated  against  on  account  of  its  size, 
since  that  would  single  out  the  owner  simply  by  reason  of  the 
successful  conduct  of  a  business;'^  the  classification  would 
proceed  on  the  theory  "that  although  he  makes  a  charge 
which  everybody  else  in  the  same  business  makes,  and  which 
is  perfectly  reasonable  so  far  as  the  value  of  the  services  ren- 
dered to  the  individuals  seeking  them  is  concerned,  yet  if  by 
the  aggregation  of  business  he  is  enabled  to  make  large  profits, 
his  charges  may  be  cut  down."  In  the  matter  of  rates  of 
interest  a  provision  limiting  the  rate  of  discount  to  be  charged 
by  individual  bankers  only,  was  declared  unconstitutional,^ 
but  after  the  law  had  been  amended  by  omitting  the  word 
"individual,"  it  was  sustained.''' 

1  State  V.  Gardner,  58  Ob.  St.  599,  *  Chicago,  B.  &  Q.  R.  E.  Co.  v. 
51  N.  E.  136.                                                 Iowa,  94  U.  S.  155;   Dow  v.  Beidel- 

2  State  V.  Wagner,  69  Minn.  206,      man,  125  U.  S.  680. 

:>S  L.  E.  A.  677 ;  upheld  in  Nebraska  •>  Getting   v.    Kansas    City    St.    Y. 

for    purposes    of    taxation,    Eosen-  Co.,  183  U.  S.  79. 

bloom  V.  State,   89   N.  W.   1053,  57  6  Carter  v.   Coleman,  84  Ala.  256. 

L.  R.  A.  922 ;   also  in  Pennsylvania,  "  Youngblood        v.        Birmingham 

New  Castle  v.  Cutler,  15  Pa.  Super.  Trust  &  Savings  Co.,  95  Ala.  521,  20 

l.'t.  612,  625.  L.  E.  A.  5S. 

•■!  State     V.     Garbroski,     1 1 1     Iowa 
496;  56  L.  E.  A.  570. 


r50 


CLASSIFICATION  AND  DISCRIMINATION .  §  734 


An  act  allowing  a  higher  than  the  regular  rate  of  interest 
to  pawnbrokers  was  held  valid  in  California."' 

The  strong  preponderance  of  opinion  is  in  favor  of  the  valid- 
ity of  legislation  making  an  exception  from  the  general  usury 
laws  in  favor  of  building  and  loan  associations  on  the  ground 
that  the  co-operative  nature  of  their  plan  of  business  makes 
the  general  objections  to  usury  inapplicable.*^ 

5j  734.  Anti-trust  legislation. — The  provision  contained  in 
many  statutes  against  trusts,  that  the  law  is  not  to  apply  to 
agricultural  products  or  live  stock,  while  in  the  possession  of 
the  producer  or  raiser,  was  sustained  in  Texas  on  the  ground 
that  in  the  ease  of  producers,  etc.,  who  must  dispose  of  their 
products  quickly  and  who  have  no  facility  for  combination, 
the  conditions  are  different  from  those  affecting  the  sellers  or 
l)uyers  of  other  articles.!*^  The  Supreme  Court  of  the  United 
States,  however,  declared  the  Illinois  anti-trust  act  unconsti- 
tutional because  it  contained  a  similar  exception,"  holding 
that  the  classification  bore  no  reasonable  or  just  relation  to 
the  acts  prohibited.  A  wider  power  of  discrimination  was 
conceded  unde-r  the  taxing  power  than  under  the  police  power. 
Tht'  argument  relied  upon  by  the  Supreme  Court  of  Texas  to 
justify  the  exception  Avas  not  referred  to  by  the  Supreme 
Court  of  the  United  States. 

j  735.  Labor  legislation. — An  act  requiring  glass  screens 
for  tlif  protection  of  motormen  on  electric  cars  only,  while  no 
similar  protection  need  be  furnished  on  cable  or  steam  cars,  is 
siistained  in  Ohio.^^  The  court  says  it  cannot  judicially  know 
that  similar  means  «>C  i)rotection  are  required  on  cable  cars. 
The  Supreme  Court  of  llic  rnilcd  States  has  sustained  an  act 
limiting  the  lunc  p<i-  t\:]y  duiing  whicli  laborers  may  be  em- 
ployed in  un-lcrground  mines,  dwelling  upon  the  fact  that  the 
Htatnle  does  not  limit  the  hours  of  ;ill  workmen,  but  confines 
itseir  to  ernploynieiils  which  llu'  legislature  lias  deemed  detri- 

".liM'kHon  V.  Hliawl,  'JO  Cal.  "JCiT.  TcxiiH  law  was  subser|iieiitly  doclaicil 

"Hfi-     aiitlioriticH     cifod,     §     304,  uncdiislitulional.      State    v.    Watcrs- 

tniprn.  ri('ive  Oil  Co.,  (i7  S.  W.  lOr^T. 

«"Wiit«T»  Pirrco  Oil  Co.  v.  Slate,  iiC,iniiolly    v.    TTnion    Scwrr    I'lpe 

1»  Ti-x.  Civ.   Apj..   1,  44  S.  W.  'XW.  Co.,  1H4  U.  S.  .'')40. 

In  rnnHrqnonrc  of  the  fIfciHion  of  tlin  '-State  v.   NelHon,  Hli  Oli.   !jil.   SS, 

IJ.  a  Knprpmc  Court   next  cite.l   tlio  159  N.  E.  22,  20  T-.  M.  A.  :?17. 


j;  735  DECISIONS  EEGARDING   DISCRIMIXATrON.  T-")! 

luciitiil  to  health.^ -^  The  Supreme  Court  of  Illinois,  on  the 
other  hand,  has  declared  a  statute  unconstitutional  which  pro- 
vided that  no  female  should  be  employed  in  any  factory  or 
workshop  more  than  eight  hours  in  any  one  day  or  forty-eight 
hours  in  any  one  week,  partly  upon  the  ground  that  the  right 
to  contract  was  liberty  and  property  and  could  not  be  abso- 
lutely controlled  by  the  legislature,  partly  upon  the  ground 
that  there  was  arbitrary  discrimination  between  manufactur- 
ers and  merchants,  and  between  women  and  men.^^  A  Nebraska 
law  establishing  an  eight  hours'  day  for  all  classes  of  mechan- 
ics, servants  and  laborers,  excepting  those  engaged  in  farm 
and  domestic  labor,  was  held  invalid,  partly  as  making  an 
unjustifiable  discrimination  between  different  classes  of  labor- 
ers, partly  as  taking  liberty  and  property  Avithoat  due  process 
of  law.^2 

A  statute  of  California  prohibiting  w^ork  in  bakeries  from 
6  p.  m.  on  Saturdays  to  6  a.  m.  on  Sundays  was  declared  un- 
constitutional as  special  legislation  not  warranted  by  the 
peculiar  conditions  of  the  business,^ "^  w^hile  the  regulation  of 
hours  of  labor  in  bakeries  has  been  upheld  in  New  York.^' 

Statutes  making  it  unlawful  for  barbers  to  do  business  on 
Sundays,  while  the  exercise  of  other  callings  is  either  not  for- 
bidden, or  is  left  to  the  general  Sunday  laws,  which  impose 
lighter  penalties  or  allow  it  to  be  determined  as  a  question  of 
fact  whether  a  business  is  a  work  of  necessity  or  not,^^  have 
been  held  invalid  in  Illinois,^^  California, ^^  and  Washington, ^i 
while  they  are  sustained  in  New  York,^^  Michigan,^^  Tennes- 

13  Holden  v.  Hardy,  169  U.  S.  366.  i  ■  People    v.    Lochner,    76    X.    Y. 

"  Eitchie  v.  People,  155  111.  98.  Sup.  396,  73  App.  Div.  120. 

15  Low    V.    Eees    Printing    Co.,    41  is  Commonwealth  v.  Waldmau,  140 

Xebr,     127;     but     see     Wenham     v.  Pa.   89,   11   L.   E.   A.   563;    State  v. 

State  (Neb.),  91  N.  W,  421,  58  L.  R.  Frederick,    45    Ark.    347;    Stone    v. 

A   825,  eight  hours'  day  for  women.  Graves,  145  Mass.  353,  13  X\  E.  906; 

iGEx    parte    Westerfield,    55    Cal.  Ungericht  v.  State,  119  Ind.  379,  21 

550.     Yet  we  read  in  a  treatise  on  X^.  E.  1082. 

the    hygienic    conditions    of    occupa-  lo  Eden  v.  People,  161  111.  296,  43 

tions:       "That    the    labor    in    bake  N.  E.  1108. 

houses   is   very   damaging   to   health  20  Ex  parte  Jentzsch,  112  Cal.  468. 

and  shortens   life  is   well  known   to  -i  Tacoma  v.  Krech,  15  "Wash.  296. 

the  trade  and  causes  it  to  be  given  22  People    v.    Havnor,    149    X^.    Y. 

up  whenever  circumstances  permit."  195,  43  N.  E.  541. 

(J.    T.    Arlidge,    Hygiene,    Diseases,  23  People  v.  Bellet,  99   Mich.   151, 

and  Mortality  of  Occupations,  Lon-  22  L.  E.  A.  696,  57  X^,  W.  1094. 
don,  1892.) 


752  CLASSITICATIOX  AND  DISCEIMINATION.  §  735 

see,-^  ]\Imnesota23  and  Oregon,-''  the  decision  in  the  ]\Iinne- 
sota  case  being  affirmed  by  the  Supreme  Court  of  the  United 
States.2' 

Weekly  payment  or  store  order  acts  have  been  held  consti- 
tutional though  confined  to  factories,2s  or  to  ]nines  and  fac- 
tories,-'' and  on  the  other  hand  have  been  declared  unconsti- 
tutional because  confined  to  mines  and  manufactories,^^  or  to 
merchants  on  the  one  side  and  coal  operatives  on  the  other,^! 
or  because  confined  to  specified  classes  of  corporations,^^  or  to 
corporations  or  trusts  employing  ten  or  more  persons.^^  If 
the  practice  of  using  store  orders  was  confined  to  the  employ- 
ments singled  out  by  the  legislature,  the  classification  would 
seem  to  be  legitimate.  Since,  however,  the  prohibition  can  be 
made  general,  it  is  safer  to  avoid  the  question  by  doing  so. 
The  store  order  act  upheld  by  the  Supreme  Court  of  the  United 
States^'*  was  general  in  character.  An  act  allowing  plaintiff 
in  actions  for  wages  if  successful  to  recover  an  attorney's  fee 
in  addition  to  damages  and  costs  was  upheld  in  Illinois,^^  and 
declared  invalid  in  Ohio^*'  and  Michigan,^"  and  a  statute  of  Tex- 
as allowing  such  recovery  of  attorney's  fees  in  certain  actions 
including  actions  for  wages,  against  railroad  corporations  only, 
was  held  to  be  unconstitutional  by  the  Supreme  Court  of  the 
United  States.^s  A  coal  weighing  act  was  declared  unconstitu- 
tional in  Illinois  partly  because  its  provisions  applied  only  to 
iiiincs  whoso  products  were  shipped  by  rail  or  water.^^  Acts 
Tiinkiiig  it  unlnwFul  for  employers  to  prevent  employees  fi'om 

•-!<Hreyer  v.  State,  102  Tenn.  103.  3i  Dixon  v.  Poe   (Ind,),  65  N.  E. 

sr- State  v.  Petit,  74  Minn.  376.  518. 

2«  Ex  parte  Nortlirup,  69  Pac.  4-45.  S2  Bi aceville    Coal    Co.    v.    People, 

2T  Petit   V.    Minnesota,    177   U.   S.  147  111.  66. 

164.  33  state  v.  Haun,  61   K.-ui.  146,  47 

-"  MnHHacluiHcttH   Opinion    of   Jns-  L.  R.  A.  369. 

tice«,  163  Mass.  589.  -i*  Kuoxville  Iron  Co.  v.  Harbison, 

2»  Indiana:       Hancock    v.    Yaden,  183  17.8.13. 
121    Ind.   306;    later   West   Vir>,nni.i  ••>5  Vogel  v.  Pekoe,  IH?  111.  339. 
dnrtriiif,   Slat«!   v.    Peel    Splint    foal  •'"' Hocking,' Valley  Coal  Co.  v.  Eos- 
Co.,  36  W.  Va.  802.  ser,  53  Oh.  St.  12. 

•oOodHinrles  v.  Wiseman,  113  Pa.  37  Grand  Rapida  Chair  Co.  v.  R>in- 

Rt.    131  ;   earlier  West  Virginia  doc-  nela,  77  Mich.  104. 

trine,    State    v.    Ooodwill,    33    West  38  r.ulf,  &c.,  R.  R.  C„.  v.  Ellis,  165 

Va.    179;    State   v.    Fire   Crock,   &c.,  U.  S.  150. 

Co.,     33     W.     Va.     188;     Rtato     v.  an  Hnrding  t.  People,  160  111.  450. 
I/f.nmiH,  nr.  Md.  307;  Eronr  v.  Peo- 
ple, 1-11   111.  171. 


^  73(5  PRINCll'LES  DEDUCIBLE.  753 

joining  labor  unions,  or  to  discharge  or  threaten  to  discharge 
them  ou  account  of  such  connection,  have  been  declared  un- 
constitutional in  i\Iissouri  and  Illinois  partly  as  interfering 
with  the  free  right  of  contract,  partly  because  discriminating 
between  union  and  non-union  men.^^  It  is  not  easy  to  see  how 
if  the  legislature  has  power  to  protect  membership  in  trade 
unions  it  can  do  so  otherwise  than  by  an  act  applying  specially 
to  members  of  unions.  If  there  is  a  discrimination  it  consists 
in  this  that  the  employer  may  not  threaten  to  discharge  a  man 
because  he  is  a  member  of  a  union,  but  may  threaten  to  dis- 
charge a  man  because  he  is  not  a  member  of  a  union.  The 
argument  therefore  is  in  reality  that  if  you  give  one  class  of 
men  some  protection,  you  must  give  another  class  not  the 
same  but  a  corresponding  protection.  The  act  to  be  equal 
in  spirit  would  have  to  provide  that  no  employer  shall  threaten 
to  discharge  a  laborer  either  because  he  is  or  because  he  is  not 
a  member  of  a  union.  This  is  carrying  the  principle  of  equality 
one  step  beyond  its  usual  application,  since  the  legislature  in 
dealing  with  one  evil,  is  compelled  to  deal  also  with  a  different 
evil  which  may  not  have  naade  itself  felt  as  such. 

§  736.  Principles  deducible  from  decisions. — The  foregoing 
synopsis  of  decisions  shows  the  law  in  a  formative  state :  the 
courts  assert  the  power  to  condemn  classification  that  seems 
unjust,  but  have  not  in  their  arguments  proceeded  much  be- 
yond general  phrases  of  denunciation.  It  is  easy  to  find  very 
sweeping  expressions  in  favor  as  well  as  against  the  power 
of  classification.  The  Supreme  Court  of  the  United  States 
has  said  "the  specific  regulations  for  one  kind  erf  business, 
which  may  be  necessary  for  the  protection  of  the  public,  can 
never  be  the  just  ground  of  complaint,  because  like  restrictions 
are  not  imposed  upon  other  business  of  a  different  kind,"*^ 
and:  ''Indeed,  the  very  idea  of  classification  is  that  of  in- 
equality, so  that  it  goes  without  saying  that  the  fact  of  in- 
equality in  no  manner  determines  the  matter  of  constitution- 
ality. "''^  Yet  within  three  years  after  the  decision  last  cited 
the    court   condemned   two   important   state   statutes   on   the 

40  state   V.   Julow,    129    Mo.    163;  4i  Soon  Hing  v.   Crowley,   113   TT. 

Gillespie  v.  People,  188  111.  176,  58     S.  703,  1885. 

N.  E.  1007.  42  Atchison,    &e.,    E.    Co.    v.    Mat- 

thews, 174  U.  S.  96,  106,  1899. 
48 


754  CLASSIFICATIOX  AND  Dl!:>CKmJXATlON.  §  737 

ground  of  unconstitutional  classification.^^  The  Supreme  Court 
of  Illinois,  in  tlie  case  of  Vogel  v.  Pekoc,'*^  in  which  it  sup- 
ported a  legislative  classification,  explained  a  long  line  of 
previous  decisions  against  classification  as  finding  sufficient 
support  in  the  violation  of  other  constitutional  rights. 

§  737.  Systematic  legislation. — The. statement  that  the  rem- 
edy should  be  coextensive  -with  the  evil  has  been  used  by  the 
same  court  to  sustain  a  classification  in  one  case,  and  to  annul 
a  classification  similar  in  principle  in  another.-*^  Fluctuations 
and  inconsistencies  are  inevitable  Avhen  a  new  constitutional 
principle  is  in  process  of  development.  What  will  be  the  final 
result  of  this  development?  The  stringent  exercise  of  judicial 
control  will  tend,  and  is  already  tending,  to  bring  about  more 
systematic  methods  of  legislation.  If  legislation  is  piecemeal 
or  haphazard,  the  danger  is  inevitable  that  legislators  may  be 
influenced  by  the  clamor  of  interests  without  ascertaining  the 
existence  of  conditions  requiring  special  legislation,  or  by  a 
misapprehension  of  those  conditions  due  to  a  skilful  presenta- 
tion of  one-sided  and  partial  views.  Systematic  legislation 
means  that  the  whole  range  of  the  danger  or  evil  is  presented 
and  that  the  classes  excepted  as  well  as  those  covered  are 
taken  into  consideration.  If  in  a  comprehensive  codification  of 
labor  laws  particular  trades  are  specified  as  requiring  special 
treatm(»nt,  there  is  a  certain  guaranty  that  the  discrimination 
is  not  without  valid  reasons.  The  guaranty  would  be  still 
gf(»ater,  if  the  details  of  classification  were  left  to  administra- 
tive regulation  inider  adequate  securities  for  the  judicial  and 
impartial  exercise  of  such  poAver;-*"  but  the  principles  of  such 
('Jassifieation  would  have  to  be  most  carefully  defined,  in  order 
1(»  avoid  the  fatal  objection  of  an  unconstitutional  delegation 
of  Icgislalivc  powers.'"  15iit  it  woiilil  ])e  decidedly  premature 
t(»  say  that  it  is  tlie  constitution;!  1  duly  of  the  legislature  to 
a<l()|)t  such  fr)iiipn'li('nsive  methods  of  legislation,  oi-  to  substi- 
tute a  system  of  abstract  for  thnt  of  concrete  classification. 

«3Cottint,'   V.   KuriHUH   City   St.   Y.  in  .i  nmiil»'r  of  (•.•is(>h  the  specification 

Co.,  1K3  U.  S.  79;  Connolly  v.  Union  of  |i;uli<Mil!ir  trades,  or  of  exceptions 

HfwcT  I'ij.n  Co.,  1S4  U.  S.  .110.  u,  jrciior:!]  rules,  to  tlio  Feder.-il  Coun- 

**  ir,7  III.  .13S>.  vW;   HO  §§    IG,  mi),  105d,  105k;  but 

*f' Hooth  V.  People,  ISn   111.    i:i,  r.7  tills  doleyated  power  is  not  subject 

N.  K.  70K;  Bailey  v.  People,   HIO   III.  |,,   jii.li<'i;il  .•ontrol. 
28,  no  N.  E.  OH.  17  See  e.  jr.  Mass.  Rev.  L.,  cli.  lOn, 

♦oThe  (Jenn.'in  Trade  Code  Imvcs  §  TiS. 


§  738  FOKMULATION  OF  PKINCIPLE.  755 

§  738.  Formulation  of  principle.— The  constant  and  imme- 
morial practice  of  legislation  sanctions  regulations  and  re- 
straints confined  to  particular  classes  of  business.  Nearly  the 
whole  of  the  former  English  economic  legislation  consisted 
of  statutes  each  of  which  dealt  with  one  trade  only,  and  the 
early  American  inspection  laws  singled  out  special  classes  of 
merchandise.  It  has  never  been  intimated  that  all  possible 
forms  of  mercantile  fraud  must  be  dealt  with  or  none,  or  all 
sanitary  dangers  or  none.  It  has  always  been  characteristic 
of  English  legislation  to  proceed  tentatively,  step  by  step,  and 
many  important  reforms  could  have  been  accomplished  in  no 
other  way .^8  Under  the  operation  of  the  Fourteenth  Amend- 
ment, the  legislative  power  is  certainly  not  as  free  in  this  re- 
spect as  it  used  to  be,  and  on  the  whole  this  restriction  is  a 
distinct  gain,  for  it  tends  towards  equality,  and  in  a  democracy 
equality  is  the  surest,  and,  in  the  long  rim,  the  only  possible 
guaranty  of  liberty.  But  classification,  and  therefore  class 
legislation,  has  not  yet  been  abolished,  it  is  merely  placed  un- 
der judicial  control.  The  principles  guiding  such  control  must 
be  evolved  by  further  adjudication;  it  seems,  however,  that 
the  trend  of  decisions  may  be  summarised  in  the  following  lim- 
itations :  Where  a  restraint  is  confined  to  a  special  class  of  acts 
or  occupations,  that  class  must  present  the  danger  dealt  with 
in  a  more  marked  and  uniform  degree  than  the  classes  omitted  ; 
and  where  the  restraint  is  general,  with  certain  (!xceptions,  the 
excepted  classes  must  either  be  entirely  free  from  the  danger, 
or  the  exception  must  tend  to  reduce  the  general  danger,  or  a 
distinct  and  legitimate  public  policy  must  favor  the  toleration 
of  the  evil  under  circumstances  where  it  is  outweighed  by 
great  benefits.  The  decisions  of  the  Supreme  Court  of  the 
United  States  seem  to  be  in  accordance  with  these  principles. 

48  It  may  even  be  said  that  par-  of  land,  its  descent  to  all  children, 
ticular  laws  and  customs  and  spe-  the  system  of  recording  deeds,  ne- 
cial  privileges  have  been  the  pre-  gotiability  of  choses  in  action,  pat- 
cursors  of  many  of  the  most  valued  ent  rights  and  copyright,  incorpora- 
common  rights  and  principles  of  the  tion,  &c. 
modern  law;  witness  the  devisability 


INDEX. 


[references  are  to  sections.] 

ABUTTING  OWNEE, 

special  use  of  s'treet  by,  172. 

upon  street,  cleaning  sidewalks  by,  620. 
ACCOUNTANTS, 

regulation  as  to  certified  public,  495,  673,  note  50. 
ACROBATIC  AND  AERONAUTIC  EXHIBITIONS,   120. 
ACCUMULATIONS, 

prohibition  of,  368. 
ADMINISTRATIVE   DISCRETION.     See   Discretion. 
ADMIRALTY  AND   MARITIME  JURISDICTION, 

police  legislation  under,  66. 
ADULTERATION.     See  Foodstuffs. 

definition  of,  280,  723. 
ADVERTISEMENTS  AND   SIGNS, 

unsightliness  of,  182,  and  note  1. 

by  prostitutes,  246. 

of  claims  for  sale,  301. 

use  of  flag-  in  advertisements,  63,  183,  729. 
AGRigULTURAL  PRODUCTS, 

exception  of  from  operation  of  laws  against  trusts,  invalid,  356,  734. 
ALIENATION, 

conditions  against,  invalid,  515. 

law  restricting  to  less  profitable  disposition,  516. 

restraints  upon,  365,  366. 

suspension  of  power  of,  367. 

ALIENS.     See  Chinese. 

registration  of,  45. 

refusal  of  license  for  sale  of  liquors,  207,  706. 

right  to  hold  or  dispose  of  property,  515,  516,  706,  720. 

deportation  of,  and  federal  power  over,  704. 

state  power,  705. 

protection  of,  under  Fourteenth  Amendment,  706. 

right  to  carry  on  business,  706. 

non-resident  aliens  as  members  of  corporations,  707. 
ALTERATIONS, 

in  buildings,  involving  partial  prohibition,   542. 

excessively  expensive,  548,  549. 
ALUM, 

in  baking  powder,  prohibition  of,  32. 

757 


758 


INDEX. 


[references  are  to  sections.] 


AMUSEMENTS,  PUBLIC.  See  Theaters. 

what  are,  250. 

theater  regulations,  251. 

license  of  places  of,  administrative  discretion  in  issuing,  652. 
ANARCHISM,. 

freedom  of  speech  and,  475-478. 

propaganda  of,  as  inciting  to  crime,  476,  477. 

legislation  of  Illinois,  477. 

federal   law   forbidding  entry   of   those   opposed   td  organized  govern- 
ment, 478. 

legislation  of  New  York  and  New  Jersey,  478. 
ANIMALS.    See  Cruelty  to  Animals,  Cattle. 

bodies  of  dead,  property  unless  they  become  nuisance,  125,  522, 

destructive  animals,  121. 

federal   inspection   of,   when   moat   intended   for   exportation,   136. 

keej)ing  of,  in  city,  may  be  forbidden,  141. 

running  at  large  of,  156,  526. 

running  on  streets,  168. 

cruelty  to  animals,  248,  249. 

abandonment  of  disabled,  249,  523. 

compulsory  improvement  of  breed  of,  438,  439. 

killing  of  abandoned,  and  compensation  to  owner,  249,  523. 

killing  of  diseased  animals,  524. 

liceiisc  to  keep  within  city,  644. 

atpointing  power, 

vested  in  j)rivate  associations,  673. 
APPHOPRI.ATIOX  OF  PROPERTY.     See  Eminent  Domain. 
.\W<1!1TE(TS, 

(jualifications  of  determined  by  law,  118,  493. 

examination   of,  and  exemption   of  those  already  practicing,  684. 
ARID  STATES, 

water  in,  414-417. 
ARMED  BODIES  OF  MEN, 

HtatutCH  against  use  of,  92. 

<'(n|dc>yment  of  non-resident,  forbidden,  92,  711. 
ARMS.      See    Mimtaky    OudAKiZATioNS. 

right  to  boar,  and  military  organizations,  01. 

carrying  of  concealed  weapons,  90  iiml   n.    1. 
ARRi:ST, 

with  (ir  without  w;irranl,  .S7. 

by  oflicer  or  private  person,  87. 

for  diHobedicDce,  in  cnnc  of  fire,  as  jtiiniHliment,  614. 
ART, 

•ibwenity  uinl,  niloH  controlling,  239,  480. 

freedom  of,   179. 

ARTESIAN  WELLS. 

regulntion  of  uho  a8  between  owners  in  the  same  vicinity,  425. 


INDEX.  759 

[references  are  to  sections.] 
ASSASSINATION, 

political,  477. 
ASSEMBLY,  RIGHT  OF, 

unlawful  assembly,  477. 

under  constitution,  480,  484. 
ASSOCIATED  PRESS, 

restrictive  by-laws,   345. 

obligation  to  furnish  news,  386. 
ASSOCIATION,  RIGHT  OF, 

history  of,  481. 

political  associations,  481. 

in  America,  and  power  of  control,  482-484. 

for  economic  and  commercial  purposes,  see  corporations  and  combina- 
tions. 
ASYLUM.     See  Inebriates,  Insane. 

for  habitual  drunkards,  227,  623. 

commitment  of  insane  to,  252-254. 

right  to  apply  for  discharge  at  any  time,  255. 

private,  state  control  of,  256. 
ATHEISTS, 

disqualifications  of,  461. 

denial  of  God  as  blasphemy,  465. 
ATTORNEYS.     See  Law,  Practice  of. 

laws  requiring  service  of,  without  compensation,  613. 

corporation   required   to   pay   fees   of,   in   action   against   it   for   dam- 
ages, 637,  714,  727. 

required  to  reside  in  state  where  practicing,  711. 

recovery  of  attorney's  fee  by  laborer,  in  action  for  wages,  735. 
ATTORNEY'S  FEES, 

in  addition  to  damages,  as  penalty,  637,  714,  727,  735. 
AUCTION  SALES, 

regulation  of,  and  license  of  auctioneers,  290,  652. 

license  of  auctioneer,  and  freedom  of  commerce,  294,  295. 

of  articles  in  original  package,  cannot  be  taxed,  295. 
BAKERIES, 

laws  regulating  work  in,  316,  317,  735. 
BAKING  POWDER.     See  Alum. 
BALLOTS, 

conditions  annexed  to  printing  at  public  expense,  483. 
BANKING, 

requirements  of  bond  or  deposit  to  engage  in  business  of,  40. 

restriction  of  business  to  corporations,  364,  401. 

systematic  official  control  of  institutions  of,  399. 

ground  of  supervision  of  business  of,  400. 

private  banker,  exempt  from  restrictions,  401. 

restrictions  upon,  applied  to  business  done  under  title  of  bank,  49,5. 

savings  banks,  fitness  of  organizers  required  in  New  York,  651. 

issue  of  notes  may  be  made  a  monopoly  by  government)  662. 

punishment  of  banks  for  receiving  deposits  when  insolvent,  731, 


rjQQ  INDEX. 

[references  are  to  sections.] 

BANX  NOTES.    See  Banks. 
BANKRUPTCY, 

federal  power,  65. 
state  ami  federal  laws,  306,  307. 
retroactive  laws,  557. 
BANKRUPT   SALES, 

legislative  and  municipal  regulation  of,  292. 
BARBERS.    See  Tkades  and  Occupations. 
regulation  of,  494. 

restriction  of  business  of,  to  citizens,  706. 
Sunday  work,  forbidden,  735. 
BATHING    ESTABLISHMENTS, 

safety  requirements,  1:20. 
BETTING.     See  Gambling. 

contracts  unenforcable,  190,   195. 
statutory  regulation  of,  195. 
dealing  in  futures  as,  201. 

betting  at  horse  races,  discrimination  in  favor  of,  730. 
BEACONS   AND   BUOYS, 

local   power   regarding,   80. 
BIBLE, 

reading  of,  in  public  schools,  463. 
BICYCLES, 

license  upon  owners  of,  38. 
requirement  of  numbers  for,  41. 
free  use  of  streets  for,  168. 

long  crintiniied   racing  on,  proliiliif ion   of,   248. 
HILLL'VRDS, 

[(laying  for  money,  or  loser  to  pay  for  use  of  table,  192. 
tables  and  bowling  alleys,  license  or  prohibition  of,  193. 
MILLBO.VHDS, 

limitation  of  height  oi,  lis,  182. 
prohibition  of,  as  safety  measure,   147,  182. 
HILLS  OF  EXCHANGE,  FOREIGN, 
dc.-iliiig  in,  not  comniorco,  71.  79. 
UWA.  OF  RIGHTS, 

HwiHS  and  U.  S.  constitutions,  64. 
I'.IKDH.    See  Fisii  AND  Game. 

killing  of  Hong  binls  forbidden,  219,  419. 
I'.I.ACK   L1STIN(!.     See  Lahokki.-s. 

piohibilion    of,    :ind    lt'gilim;ilr    information    regarding    a    dipchiirnred 
finplnyiM',  329. 
HLASI'HKMV.     See  Rki.kiion. 

definition   of,  46.'). 
F.OAHUS  OF  MFALTH. 

xlntf  iiikI   local,  powern  of,   l'J.1.   1'17. 

ri'gnlfilinn  of  ofTonHive  fsfablishmcnlH  by,  177. 

ronditioiiH  imposed  by,  in  granting  license  to  kcII  milk,  652,  note  22. 


INDEX.  761 

[references  are  to  sections.] 

BOARDING  HOUSES.    See  Inns  and  Lodging  Houses. 
for  emigrauts,  posting  of  rates  required,  41. 
registration   of  guests,  46. 
laws  against  overcrowding,  728. 

BOAED  OF  TEADE, 

legitimacy  of  business  of,  202. 

quotations  of  must  be  furnished  equally  to  all,  386. 

BONDS  AND  DEPOSITS, 

as  measure  of  police  control,  40. 

requirement  in  quasi-public  businesses,  40,  297,  494. 

bond  required  in  sale  of  liquors,  207. 

required  of  warehousemen,  297. 
BOOKS, 

sale  of  obscene,  236,  237. 

censorship  of,  471. 

New  York  statute  requiring  furnishing  of,  at  reasonable  prices,  375. 

BOOK-MAKING. 

prohibition  of,  195. 

on  streets,  as  obstruction,  169. 
BOOMS.    For  Floating  Lumber. 

flooding  of  lands  in  connection  with,  409,  413. 
BOTTLING  ACTS, 

question  whether  for  protection  of  public  interest,  298. 

BOULEVAEDS, 

heavy  vehicles  may  be  forbidden  on,  171. 

houses  required  to  be  set  back,  on,  181,  514,  note  41. 
BOUNTIES, 

conditions  attached  to  grant  of,  24. 

to  sugar  producers,  constitutionality  of,  428. 
BOWLING.     See  Billiards. 
BEEAD, 

regulation  of  sale  of,  275. 

regulation  of  price  of,  375. 

assise  of,  374. 
BEEWERY, 

rendered  useless  by  prohibitory  liquor  legislation,  539,  540. 

BEIDGES.     See  Navigable  Waters. 

erection  of,  by  state  authority,  over  navigable  rivers,  72,  80. 

local  regulation  of,  159. 

exclusive  charter  right  to  erect,  362,  363,  675. 

compensation  to  riparian  owner,  when  bridge  piers  built  upon  his  land, 
404. 

when  an  obstruction  to  navigation,  407. 

perpetual  bridge  monopoly  a  contract,  679. 
BEOKEES, 

dealing  in  foreign  bills  of  exchange,  tax  upon,  not  tax  on  interstate 
commerce,  74,  79. 


;o  INDEX. 


762 


[rkferences  are  to  sections.] 


BROKERS— continued. 

foreign  legislation  controlling,  203. 

monopoy  of,  in  France,  abolished,  587. 
BRUTALITY.     See  Cruelty  to  Animals,  Prize  Fights. 

in  sports  and  amusements,  248. 

to  animals,  249. 
BUCKET  SHOPS.    See  Gambling  Houses. 

prohibition  of,  59,  202. 
BUILDING  AND  LOAN  ASSOCIATIONS, 

payment  by,  of  premiums  in  addition  to  regular  rate  of  jnterest,  304. 

rates  of  interest,  exception  as  to,  in  case  of,  733. 
BUILDINGS  AND  STRUCTURES.     See  Houses. 

inspection  of,  47,  128. 

limitation  of  height,  118,  180,  514,  538. 

permits  for  construction  of,  118. 

regulation  of,  for  health,  128,  542. 

regulation  as  to  sightliness,  180,  181. 

party  walls,  443. 

permits  to  erect  cannot  be  made  dependent  upon  uncontrolled  adminis- 
trative discretion,  643,  644. 

permits  for  moving,  644. 
I'.IR1.\LS.     See  Cemeteries. 

pDJice  control  of,  125. 
BUSINESS   AFFECTED   WITH   A   PUBLIC   INTEREST.     See   Public 

Interest,  Business  Affected  With. 
CAB  STANDS, 

privilege  to  keep,  as  justification  of  regulation  of  fares,  377. 

as  special  use  of  streets,  173. 
(•A.MP  MEETINGS, 

prohibition  of  temporary  business  in  neighborhood  of,  175,  note  15. 
CANADA   THISTLES, 

oljljgution  to  remove,  617. 
CARCASSES, 

of  animals,  as  nuisance,  522. 
CATTLE, 

<|iiaraiiliiic  agaiiiHt    infected,   77,   82,   129. 

fi'ilrral  inspcitioii  of,  when  meat  is  to  be  exported,  79. 

iitnto  quarantine,  excluding  infected,  from  state,  8,3,  129,  136,  138. 

Btftto  lawH  regarding  treatment  or  destruction  of  diseased,   129. 

slaughtoring  of,  regulated,   129. 

cpiar.'intine  against   caltli'   i'mtu  mikiIIhi-  state,  us  means  of  discrimina- 
tion, 138. 

reguhitions  to  prevent  cruelty  to,  in  course  of  transportalion,  2  19. 

killing  of  infected  rattle,  and  cnmpr'iisation,  r>21. 

killing  (if,  by  moving  trains,  and   railrnnd's  liability  in  .iariiages,  629, 
i'M,  727. 

riiilroad's  liability  for  bringing  diseased  cattle  into  state,  6;{4. 


INDEX.  763 

[references  are  to  sections.] 

CEMETERIES, 

local  power  to  remove  or  locate,  125,  141, 

removal  of,  as  nuisances,  178. 

reasonableness  of  regulation,  .'530. 

proiiibition  of,  where  established  under  license,  r)65. 

prohibition  of  creation  of,  as  discrimination  in  favor  of  existing,  689. 
CENSORSHIP.    See  Stage  Censorship. 

of  press,  471. 

in  time  of  war,  471,  note. 

laws  of  Russia,  as  to,  471,  note. 
CHARGEABLE, 

persons  a(;tually  chargeable  and  persons  likely  to  become  chargeable, 
271,  491. 
CHARGES.    See  Rates  and  Charges. 
CHARITY.     See  Trusts,  Eleemosynary. 

state  control  of  private,  or  charitable  institutions,  268,  269. 

gifts  to  charitable  corporations,  legislative  regulation  of,  369. 
CHARTERS.    See  Corporate  Charters. 
CHICAGO, 

anarchists,   case,   477. 

CHILDREN.     See  Minors,  Women  and  Children,  Parent  and  Child. 
regulation  of  conditions  of  work,  131,  310. 
employment  of  young,  forbidden,  258. 
employment  of,  as  actors,  259. 
commitment  to  reform  school,  260-263. 
placing  out  in  other  states,  by  charitable  societies  of  other  states,  re 

strained,  268  n. 
compulsory  education  of,  264,  265. 
truant  schools,  265. 

CHINESE, 

registration  of,  by  act  of  1892,  45. 

exclusion  of  Chinese  labor,  329,  486. 

cannot  be  compelled  to  live  in  separate  portion  of  city,  491. 

discrimination   against   in   granting   laundry   licenses,   and   Fourteenth 
Amendment,  655,  706.  » 

disqualified  from  giving  evidence  in  favor  of,  or  against  white  men,  in 
criminal  cases,  693,  n.  33. 
CHIROPODIST, 

alien  forbidden  to  engage  in  business  of,  in  New  York,  706. 
CHOSES  IN  ACTION, 

sending  without  state  for  collection  prohibited,  301. 

prohibition  of  purchase  by  lawyer,  725  n. 

CHRISTIAN  SCIENCE, 

regulations  of  the  practice  of  medicine  and,  133,  154. 
eohipulsory  vaccination  and,  144n.,  447. 
and  treatment  other  than  medical,  154,  468. 
compulsory  medical  treatment,  468. 


7(34  INDEX. 

[REFERENCES  ARE  TO  SECTIONS.] 

CIGAKETTES, 

prohibition  of  manufacture  and  sale  of,  130,  134. 

as  articles  of  commerce,  137,  145. 
CITIZENSHIP,  RIGHTS  OF, 

and  sale  of  liquors,  229. 

and  interstate  migration,  488. 

negroes',  under  Fourteenth  Amendment,  691. 

and  public  ofEce,  706. 

citizenship  of  United  States  confers,  in  several  states,  708,  709. 

' '  Citizenship  and  domicil  united ' '  as  requirement  for  participation'  in 
common  property  of  state,  712. 
CIVIL  DAMAGE  ACTS.    See  Liquors. 

liquor  and  gambling,  626. 
CIVIL  EIGHTS  LEGISLATION, 

federal  and  state,  693,  694. 

CLAIMS, 

sending  out  of  state  for  collection,  301  n. 
CLASSIFICATION.    See  Class  Legislation,  Equality,  Discrimination. 

statutory  and  equality,  610. 

discrimination  and,  in  general,  682. 

for  police  regulation,  724,  725. 

judicial  control  of  and  attitude  towards  legislative,  725,  736,  738. 

in  anti-trust  legislation,  exclusion  of  agricultural  products,  734. 

principle  of  valid  classification,  738. 

CLASS  LEGISLATION, 

bottling  acts  as,  298. 

regulation  of  hours  of  labor  in  factories  as,  313,  314. 

in  regard  to  payment  of  wages,  320,  321. 

regulation  of  charges  in  particular  classes  of  business,  378. 

special  rates  for  railroad  mileage  tickets  as,  393. 

statutory  classification,  and  Fourteenth  Amendment,  610. 

restraint  on  class  for  its  own  protection,  155. 
CLEARANCE  CARDS, 

right  of  discharged  laborer  to,  327. 

COAL, 

Bale  by  weight  may  be  required,  275. 

requirement  that  miners  at  be  jiaid  l)y  weight  unconstitutional  in  Illi- 
nois, 275. 
agreement   for  control  of  su|)ply  of,  in  market,  347. 
coal-weighing  acts,   394,   502,   735. 

gauging  boatloads  of  before  sale,  and  freedom  of  commerce,  75. 
rccordH  of  weighing  for  statistical  information,  44. 
f '()K!{CIO.\'.      Hoe    Lauorkks,    Timiiv^    Tt-ions,    tiombinations    ok    Em- 
rrx)YKUH.  , 

of  lalxiriTH  by  cinployerH,  .125,  326. 

of  employers  by  labor  urganizations,  332-3.14. 


INDEX.  765 

[references  are  to  sections.] 

COINAGE, 

federal  power,  65. 

public  monopoly,  666. 
COLLECTION,  AGENCIES.    See  Debtors,  Protection  of. 

annoying  practices  forbidden,  301. 
COLORED  PERSONS.    See  Negroes. 
COLORING  MATTER.    See  Foodstuffs,  Oleomargarine. 

when  a  substantial  ingredient,  32. 

when  used  to  deceive,  32. 

requirement   of   offensive   coloring   in    manufacture    of   oleomargarine, 
49,  282. 

used  in  oleomargarine,  62,  77,  284,  731. 

colored  netting,  to  make  fruit  look  attractive,  286. 

COMBINATIONS  IN  RESTRAINT  OF  TRADE.     See  Trusts,   Monop- 
oly, Conspiracy,  Law  of. 

federal  control  and  commerce  clause,  79,  341,  342. 

English  legislation,  338. 

state  legislation,  339,  340. 

federal  legislation,  341. 

when  manufacturing  concerns  are  in  restraint  of  interstate  commerce, 
79,  341,  342. 

common  law  rules  and  their  application,  200,  343-353. 

agreements  not  to  deal  with  those  refusing  to  adopt  certain  rules,  345. 

contract  for  exclusive  sale  of  certain  goods,  346. 

division  of  business  or  regulation  of  rates,  347. 

agreement  by  vendor  not  to  engage  in  same  business,  348. 

consolidation  of  corporations,  349-351. 

corporations  as,  351,  352. 

agreements   to   fix  price,   354. 

constitutionality  of  legislation,  355. 

discrimination  by  laws  in  favor  of  agricultural  products,  356,  734. 
COMBINATIONS  OF  EMPLOYERS, 

legal  as  means  of  combating  labor  unions,  326. 

and  labor  unions,  337,  356. 

COMBINATIONS  OF  LABORERS.     See  Trade  Unions. 
COMMERCE.     See  Combinations  in  Restraint  of  Trade,   Inspection, 
Railroads  and  Common  Carriers,  Quarantine,  Original  Package 
Doctrine,  Trusts. 
not  a  regulation  of,  to  require  railroads  to  post   rates  for  interstate 

traffic,  41. 
state  law  requiring  coloring  of  oleomargarine  when  it  is  an  article  of 

commerce,  49,  58,  284. 
labels  on  ' '  convict-made ' '  goods,  50. 
federal  legislation  under  commerce  clause,  65-67. 
federal  control  over  state  legislation,  69-85. 

agent  of  railroad  of  another  state  free  from  license  tax,  73,  79,  295. 
agent  of  express  company,  engaged  in,  73. 


766  INDEX. 

[references  are  to  sections.] 

COMMERCE— continued. 

drummers,  engaged  in  interstate  commerce,  free  from  license  tax,  74, 
294. 

tax  upon  auctioneers  selling  goods  from  another  state,  74,  295. 

state  regulations  affecting  interestate  trains,  135,  699. 

federal  control  of  state  laws  for  inspection  of  articles  before  export, 
and  of  imported  articles,  75,  77,  233,  277. 

state  liquor  regulations  and  interstate,  76,  230-233. 

business  which  is  commerce  distinguished  from  business  not  commerce, 
79. 

freedom  of,  when  congress  has  not  acted,  80. 

original  package  doctrine,  81,  232,  284. 

state  cannot  discriminate  against  imported  articles,  82. 

lawful  articles  of,  what  are,  83. 

state  police  power  and  freedom  of,  84. 

summary  of  principles  of  federal  control  of,  85. 

and  state  regulation  of  immigration,  101,  705. 

tax  upon  emigrant  agents  not  a  tax  upon  interstate  commerce,  74,  79, 
328,  489. 

state  inspection  and  quarantine,  136,  138,  139,  705. 

local  police  power  and  interstate,  159. 

lotteries  and  commerce  power,   198. 

state  exclusion  of  paupers,  and  burdens  upon  those  bringing  into  state, 
271. 

state  taxation  of,  iuvalitl,  295. 

strikes,  when  an  interference  with,  341,  356. 

manufactures,  when  controlled  by  commerce  power,  341. 

sale  of  manufactured  product  from  one  state  to  another,  342. 

trusts  and  federal  jiower,  341,  342,  355. 

fish  and  game  laws  interfering  with  freedom  of,  420. 

civil  riglits  legislation  as  regulation  of,  694,  699. 

state  cannot  forbid  aliens  engaging  in,  706. 

regulafions  as  to  itinerant  dealers  from  other  states  as  regulation  of, 
710. 

corporations  engaged  in  interstate,  717,  720. 
COMMKRCE  CFvArsIO.     See  Commerce. 
rO.M .MISSION   .MF:H('HANTS. 

regulation   of   buHinesH  of,   297. 

licensing  of,  entrusted  to  private  association,  673. 
COM. MIT. ME  NT. 

Hiirnnuiry,  of  vagrants  ami  |)r<istitut('.s,  '.»«,  DU,  )114. 

of  habitii.'il  drurikardn  to  a.syluniH  or  curative  institutions,  227. 

of  insane  to  aHyluma,  due  process  in,  252-254. 

of  minors  to  refr)rni  school,  rights  of  ))arents,  260-263. 

of  perHons  disobeying  orders  of  fire  oflicials,  614. 
COM.MON   <*AHI{I  Klv.S.     .See   Haii.hoaks   am»   Commhv    Cakkiers. 
COMI'KNSATION.     See  Kminent  Domain. 

for  property  taken  by  eminent  domain,  501 -5(16, 


INDEX.  767 

[references  are  to  sections.] 

COMPENSATION— continued. 

for  injury  to  property  by  public  use,  507-510,  576. 

and  taking  or  regulation  of  property  under  police  power,  511-517. 

taking  samples  of  foodstuf!'s  for  inspection,  and,  519. 

for  property  destroyed  to  check  fire,  or  from  military  necessity,  534- 
537. 

for  property  rendered,  useless  by  change  of  legislation,  constitutional 
question,  539-541. 

on  abolition  of  slavery,  584-586. 

for  loss  in  abolition  of  trade  monopolies  in  Europe,  589. 

lawful  property  cannot  be  taken  without,  602. 
COMPETITION.     See  also  Unfair  Competitiox. 

legislature  cannot  protect  from,  60,  288,  293,  494. 

danger  of,  justifying  Sunday  legislation,  186. 

justifying  protection  of  class,  155. 

combinations  to  restrict  or  prevent,  347,  349-351,  354. 

whether  it  creates  inequality  of  circumstances  and  conditions  so  as  to 
justify  discrimination  in  charges,  391,  392. 
COMPULSION, 

as  an  instrument  of  the  police  power,  22. 
COMPULSORY  ASSOCIATIONS.     See  Enforced  Benefits. 

as  means  of  control,  56. 

principles  applying  to,  57. 

applied  to  callings  affecting  public,  for  which  license  is  required,  57. 

of  riparian  proprietors,  to  prevent  inundation,  113,  442,  619. 
COMPULSORY    BENEFITS.     See    Drainage,   Irrigation,    Compulsory 
Insurance. 

discussion  of,  428-444. 

compulsory  insurance,  432-437. 

compulsory  improvement  of  land  or  of  breed  of  animals,  438,  439. 

compulsory  joint  improvements,  440-444. 
COMPULSORY  EDUCATION.     See  Education. 

regulations  concerning,  264-266. 
COMPULSORY   INSURANCE, 

in  Germany,  432. 

constitutionality  of,  433-437. 

in  connection  with  registration  of  titles,  435. 

teachers'  pension  fund,  436. 

of  workmen,  437. 
COMPULSORY  SERTVCE, 

of  laborers,  448-452. 

specific  enforcement  of  labor  contract,  450-452. 

attorneys  required  to  defend  poor  persons,  613. 

emergency  services,  614. 
CONCEALED  WEAPONS.     See  Arms. 

carrying  of,  90  and  note  19. 
CONDITIONAL  PARDON, 

valid  conditions  of,  104. 


ygg  INDEX. 

[references  are  to  sections.] 

CONSCRIPTION, 

military,  614,  note. 
CONSEQUENTIAL  DAMAGES, 

.->09,  570. 
CONSPIRACY,  LAW  OF, 

and  labor  organizations,  330-332,  335,  356. 

agreement   constituting  conspiracy,   and   agreement   merely   unenforce- 
able, 345. 

agreement  that  purchaser  shall  not  sell  goods  of  any  other  person,  346. 

di\'ision  of  business,  or  regulation  of  rates,  347. 

and  beneficial  trade  agreements,  355. 

trusts  and  labor  unions,  356. 

and  anarchistic  agitation,  476. 
CONSTITUTION, 

as  juilicially  enforceable  law,  17. 

policy  of,  as  enforced  by  courts,  20,  21. 

amendments  to,  passed  in  consequence  of  adverse  judicial  decisions, 
155. 
CONSTRUCTION  OF  STATUTES, 

princiidos  of^  158,  n.  9: 
CONTAGIOUS  AND  EPIDEMIC  DISEASES.     See  Quarantine,  Disin- 

KECTION. 
report  of,  required,  43,  52. 
inspection  in  cases  of,  47. 

state  proliihition  of  immigrants  having,  71,  88,  122,  705. 
federal  power  over  diseased  immigrants,  123. 
in  animals,  state  quarantine  against,  129,  136,  138. 
state  quarantine  against  another  state  where  epidemic  exists,  139. 
any  one  having  knowledge  of,  required  to  report,  614. 
CONTRACTS.    See  Corporate  Charters,  Dartmouth  College  Case. 

limitation  of  lumrs  of  labor  as  afTocting  freedom  of  contract,  155,  500. 

gaming  contracts  unenforceable,  190,  195,  201. 

state  bankruptcy  laws,  and  obligation  of,  306,  307. 

Htate  laws  forbidding  contracts  payable  in  gold,  308,  309. 

freedom  of  contract  an<l  legislation  regarding  payment  of  wages,  321. 

freedom  of  contract  and  stipiihitions  in  labor  contract,  323,  324. 

police  power  cannot  be  ((mtracted  away,  24,  362,  556,  561,  564,  580. 

in  restraint  of  trade,  void,  355. 

corporate  charter  as  contract,  21,  361,  3(52,  r)6I,  5()9. 

charter  nttt  recognizcil  '.i^.  unless  intcTit  to  contract,  and  consideration, 

362,  676. 
♦•xempfifin  frfmi  taxation  as,  363,  561,  568. 
hibor  ciintract    for  .'in   iinrcaHoiiable  time,  449. 
Hpfciflc  enfon-ement  of  lal)or,  450-452. 
freedom  of  contract,  as  ccuistitutional  right,  498-503. 
polico   power,    and    existing,    555. 
valid  police  regnlatioti,  making  |K'rfnrmance  of  existing  contract  iinpos- 

Hibi.v  r,r,r,.  r,0'2. 


INDEX.  769 

[references  are  to  sections.] 

CONTRACTS— continuod. 

federal  power  and  impairment  of,  5.58. 

bankruptey  aud  legal  tender  laws  affecting,  557,  558. 

specie  contracts,  559. 

scaling  laws,  560. 

license  to  pursue  business  prejudicial  to  safety  and  morals,  561. 

license  to  conduct  lottery,  563. 

liquor  licenses  not,  564. 

license  of  offensive  establishments  not,  .565,  602. 

exemptions  from  public  service  not,  566. 

exemptions  from  liability  for  debt,  567. 

determination  of  charges  in  corporate  charter,  or  by  municipality  under 

legislative  authority,  570-572. 
license  to  use  streets  or  public  property  for  term  of  years  as  contract, 

576,  577. 
inviolability  of,  and  vested  rights,  578,  579. 
license  for  limited  time,  580. 
revocable  licenses,  582. 
exclusive  charter  right  a,  675,  679,  680. 

charter  or  grant  not  exclusive,  and  municipal  establishment  of  compet- 
ing enterprise,  677. 
CONTEACT  LABOR, 

federal  law  regarding  importation  of,  65,  329,  486. 
and  state  laws,  450,  451. 
CONVICT  LABOR, 

report  of  Industrial  Commission  on,  310. 
CONVICT-MADE, 

labelling  goods,  50. 
COPYRIGHT, 

federal  power,  65. 

history  of  author's  rights,  663.  » 

federal  legislation,  664. 

exercise  of  privilege  for  public  benefit,  665. 
CORNERING  THE  MARKET, 
defined,  200. 
prohibition  of,  340. 
CORPORATIONS.     See  Corporate  Charters. 
reports  as  to  lawful  conduct  of  business,  54. 
reports  of  violation  of  law,  55. 

compulsory  testimony  of  shareholder  or  officer,  55,  note, 
licensed,  for  particular  business,  219. 
holding  stock  of  rival  corporations,  349. 
power  must  be  exercised  by  directors  and  cannot  be  surrendered  to 

trustees,  350. 
consolidation  of,  349-351. 
monopolistic,  351,  352,  354. 
general  eoporate  rights,  357. 
discussion  of  powers  and  regulation,  357-364. 
49 


770  i^^^EX. 

[references  are  to  sections.] 

CORPORATIONS — continued. 

formation  of  as  royal  prerogative,  358. 

formation  by  special  charter  or  under  general  act,   359. 

doctrine  of  ultra  vires,  360  and  note  8,  715. 

usual  restrictions  on  organisation,  360. 

charter  as  contract,  361  and  n.,  561,  569,  715. 

reservation  of  power  to  change  charter,  361. 

police  power  cannot  be  contracted  away,  36:2,  561,  562. 

charter  power  to  fix  rates,  and  legislative  regulation,  362. 

regulation  of,  cannot  destroy  property,  362. 

affected  with  public  interest,  regulation  of,  363. 

charter  power  to  fix  rates,  and  legislative  regulation,  363. 

compulsory  incorporation  to  engage  in  certain  business,  364. 

statute  of  mortmain,  368. 

religious  and  charitable,  restrictions  upon  holding  property  by,  369. 

may  be  required  by  law  to  exercise  corporate  powers  for  purpose  for 

which  created,  439. 
limited  liability  of,  567,  714. 

determination  of  rates  in  charter,  as  contract,  570-572. 
eleemosynary,  state  power  in  changing  direction  of,  or  directing  admin- 
istration of  trust,  597-600. 

discrimination  against,  in  administration  of  justice,  714. 
are  persons,  within  constitutional  protection.  715. 

foreign  corporations,  valid  conditions  imposed  upon  by  state,  716. 

foreign,  engaged  in  interstate  commerce,  717-720. 

holdings  of  land  by  foreign,  engaged  in  commerce,  719,  720. 
CORPOH.M'E  rilARTER.     See  Corpor.\tions. 

as  contract,  24,  361,  561,  569. 

police  power  cannot  be  contracted  away,  24,  362,  561-564,  580. 

conditions  annexed  to  grant  of,  to  college  or  university,  267. 

bye-laws  under,  in  restraint   of  trade,  illegal,  344. 

|)o\vcr  by,  to  hold  stock  in  other  corporations,  349. 

grant  of,  and  conditions  thereto,  358,  359. 

miiliT  special  or  general  act,  359. 

charter  nuist  be  accepted,  359. 

rcHcrvatioii  of  pdwer  to  cliaiigc,  .'((il    :inil   ii. 

ino(liflcati<ui  nf  jirinciplc  di'  I ):ii-i iiHuiiitli  College  case,  362,  363. 

Ktrict  constniction  of  charter  ]triviieges,  362,  676. 

property  cannot  be  (h'strnyed  \inder  j)o\ver  to  repeal  or  amend,  362. 

Icginhitivc  and    jndicial  power  over,   3(51!. 

determination  of  ch.'irges  in,  as  contract,  570-572. 

fif  eleemosynary  corjioration,  and  charter  as  contract,  .592,  599,  600. 

H|>e<-i;i)  privilege  in,  under  speeial  act,  as  monopoly,  713. 
( 'OH I '•)!{. A TK  I'OWKUS  ( »!■'  STATi;, 

pDimotion  of  pii))Iic  welfare  through,  8,  12,  22,  23. 

health  ;ind  safety  regulation  by  exercise  ni\   111,   111,  122. 

cdiitrol  of  convict  labrtr,  and  l.'ibor  on  pnlilic  works,  310. 

enconragenn-nt  of  industry  through  exercise  of,  428. 


INDEX.  771 

[references  are  to  sections.] 

CORPORATE  POWERS  OF   STATE— continued. 

regulation  of  meetings  and  parades  in  public  places,  644. 

state  institutions,  and  common  state  property,  use  by  non-resident,  712. 
COTTON, 

in  the  seed,  restraints  on  sale  of,  93. 
CREDITORS, 

preference  to  those  within  state  invalid,  709. 

sending  claims  out  of  the  state  for  collection,  301,  note. 
CRIME, 

misdemeanors  distinguished  from,  26. 

criminal  law  as  sanction  of  police  legislation,  26. 

self  crimination,  53,  54. 

prevention  of,  86-110. 

prevention  of  by  police  patrol,  86. 

prevention  of  by  regulating  certain  businesses,  93,  289. 

criminal  law,  and  local  ordinance  power,  157. 

incitement  to,  476,  477. 

intent  in  crime  and  misdemeanor,  635. 

conviction   of,   debarring   person   from   certain    occupations,    110,    287, 
544,  545. 

knowledge  presumed,  in  statutory  offense   635,  636. 
CRIMINAL  CHARACTER, 

cannot  be  punished  as  such,  94-96. 
CRIMINAL  LAW, 

as  sanction  of  police  legislation,  26. 

distinguished  from  police  power,  in  dealing  with  fraud,  272. 
CRIMINALS, 

supervision  of  known,  86. 

detention  of  suspected  criminals  upon  charge  of  vagrancy,  100. 

control  after  conviction,  102-110. 

< 

conditional  pardon,  104. 

indeterminate  sentence  and  parole,  105-107. 

suspension  of  sentence,  and  probation,  108. 

police  supervision  of,  after  expiration  of  sentence,  110. 
CRUELTY  TO  ANIMALS, 

legislation  to  prevent,  249. 

regulation  to  prevent,  in  transportation,  249. 

killing  of  abandoned  animals  by  society  for  prevention  of,  523. 
CULTURE, 

freedom  of,  479. 
DAIRY, 

license  to  keep  within  city  limits,  643,  644. 
DAMAGE, 

remoteness  of  cause  of,  as  affecting  liability,  612. 

civil  damage  acts,  626. 

liability  for,  when  not  due  to  negligence.  633-634. 

civil  and  penal  liability  for,  63&, 


772 


INDEX. 


[references  are  to  sections.] 


DAMAGE — continued. 

by  railroad  conipanj-,  penalties  for  delaying  to  pay  compensation,  637. 

consequential,  509,  510. 
DAMS.    See  Mill  Dams' 
DAXGEKOUS   SPOETS, 

statutory  provisions  regarding,  120. 
DAETMOUTH  college  CASE, 

corporate  charter  as  contract,  24,  361,  561,  569. 

modifications  of  doctrine,  362,  562,  563. 

eleemosynary  trusts  and,  597. 
DEAD  BODIES, 

property,  when  acquired  for  dissection,  125. 

control  of  burial  of,  125. 

of  animals,  property  unless  they  become  nuisances,  522. 
DEBTORS,  PROTECTION  OF.     See  Usury,  Legal  Tender. 

in  general,  300. 

in  collection  of  debts,  301. 

publication  of  debts,   301. 

sending  claims  for  debt  out  of  state  for  collection,  301  n. 

usury  laws,   302-304,   557. 

bankruptcy  legislation,  305-307,  557. 

legislation  against  contracts  payable  in  gold,  308,  309. 

legal  tender  laws,   558,  559. 

exemption  from  liability  for  debts,  567. 

legislation  may  not  discriminate  against  railroad  as  debtor,  714,  727. 
DKLEGATIOX    OF   LEGISLATIVE    POWER, 

to  administrative  board  or  officer,  34,  496,  497. 

to   professional   associations,   56,    57. 

to  prison  boards,  in  regard  to  parole  or  indeterminate  sentence,  106. 

to  administrative  oflicer,  in  regulation  of  parades  and  meetings,   174, 
643. 

ill  requiring  consent  of  majority  of  inhabitants  of  district  to  certain 
business,   207,   212. 

to  community  and  local  option,  217. 

to  people  of  district  to  determine  as  to  location  of  noxious  establish- 
ment, 645. 

to  administrative  ofTieer  or  board.  In  frame  rules  for  admission  to  cer- 
tain occupations,  649. 

DEPARTMENT  STORES, 

ordinnnco  or  statute  regarding,  invalid,  148,  494. 
DEPENDENTS.    See  Insane,  Minors,  Paupers. 

care  and  control,  in  general,  11. 

general  discuHBion  of  control  of,  252-27L 
DEF»OSITS.    Sec  BoNns  and  Deposits. 
DETECTIVES,    PRIVATE, 

ncting  aH  police  ofTicors,  92. 
DIKES.     See  EmHANKMENTS. 


INDEX.  773 

[references  are  to  sections.] 

DIPLOMA, 

from  institution  of  learning,  as  evidence  of  professional  qualification, 
133. 

Disability, 

of  ex-eonviets,   110,  210,  544,  545. 
of  aliens,  207,   704-707,   720. 
of  women,  701-703,  244. 
DISCRETION.     See  License,   Discrimination,   Equality,   Parades   and 
Processions. 
uncontrolled,   of  administrative  officer  in   granting  license   or   permit, 

212,   642-645,   632. 
judicial  control  of  administrative,  in  grant  of  licenses,  653-655. 
DISINFECTION, 

in  case  of  contagious  diseases,  123. 
temporary  dispossession  of  property  for,  518. 
as  precautionary  measure,  521. 
DISCRIMINATION.     See  Equality,  Classification,  Race. 
in  railroad  rates,  common  law  rule,  73. 
in  taxing  peddlers,  74. 

against  products  of  other  states  by  inspection  laws,  76,  77,  277. 
under  color  of  sanitary  regulation,  138,  139. 
against  imports,  by  state,  82,  138. 
principle  of  non-discrimination,  82. 
against  certain   schools   of  medicine   or   persons   by   examining  board. 

152-154,  647,  673  n. 
against  poor,  in  definition  of  nuisances,  178. 

against  district  in  confining  unwholesome  establishments  to  it,  179. 
in  liquor  legislation  against  products  of  other  states,  232,  233. 
against  imported  articles,  by  license  fees,  294,  295. 
in  regulation   of  hours   of  labor,   against   factories   or   other   specified 

industries,  313,  317,  735. 
between  men  and  women  in  limitation  of  hours  of  labor,  313,  314,  735. 
against  specified  industries  in  legislation  regarding  payment  of  wages, 

320,  321. 
between  combinations  of  labor  and  combinations  of  capital,  337,  356. 
in  anti-trust  laws,  in  favor  of  certain  industries,  356,  734. 
by  public-service  corporation,  in  furnishing  service,  387. 
by  railroad  companies,  in  rates  for  long  and  short  hauls  or  because  of 

size  of  shipments,  391,  392. 
requirement  of  special  mileage  rates  as,  393. 
against  certain   organisations  in  permitting  street  parades,   174,   468, 

481,  643,  729. 
in  licensing  occupations,  497. 
in  regulation  of  contracts,  500,  502. 
and   uncontrolled    administrative    discretion   in    granting    license,    212, 

642-645. 
judicial  control   of  administrative  discretion  to  prevent,   653-655. 
statutory  classification  and,  610,  724,  725. 


— ,  INDEX. 

[references  are  to  sections.] 

DISCRIMINATION— continued. 

in  the  fixing  qualification  for  admission  to  professions,  in  favor  of  exist- 
ing practitioners,  544,  545,  683,  684. 

in  favor  of  existing  estabUshments  by  prohibition  of  erection  of  new 
ones,  687. 

between  localities,  688-690. 

because  of  race,  691-700. 

because  of  sex,  701-703. 

against  aliens,  704-707. 

against  non-residents  of  state  or  United  States,  708-712. 

against  corporations,  in  regulation  of  industry,  715. 

in  police  measures  against  different  evils,  721,  723. 

between  lodging  houses  and  hotels  in  prohibiting  overcrowding,  728. 
DISPENSARY    SYSTEM, 

in  South  Carolina  and  elsewhere,  218,  233. 

constitutionality  of,  666. 
DISTRICT  OF  COLUMBIA, 

exercise  of  police  power  with  regard  to,  67. 
DIVISION  FENCES.     See  Neighbors'  Rights. 

joint  erection  of,  444. 
DOCKS.    See  Wharfs,  Piers  and  Docks.  V 

DOGS, 

property  in,  421. 

tax  upon  to  pay  damages  resulting  from  killing  of  sheep,  434. 

if  kept  ill  unlawful  manner  or  for  unlawful  ])urpose,  may  be  destroyed, 

526,  527. 
double  damages  for  injury  caused  by,  635. 

DRAINAGE, 

majority  may  compel  minority  of  owners  to  join  in  improvements,  127, 
441,  442. 

drains  and  ditches,  when  across  private  property,  constitutional  ques- 
tion, 427. 

creation  of  district,  by  volo,  including  land  of  those  not  consenting, 
441,  442. 

owners  of  Iniid  may  be  required  to  raise  grade  so  as  to  secure  adequate, 
617. 

DHUGGIHTS, 

ro|iort  by,  or  record  of,  Hales  of  liquor  or  poisons,  43,  222. 

prcHcriptionH  »a  jiapers  of  luiblic  nature,  53. 

(•nmpnlHory   aHHociations   of,    56. 

limitation  of  sale  of  proprietary  medicines  to,  149,  650. 

MiU>  of  liquor  as  medicine  by,  222,  223,  650. 

hourH  of  work  <tf  drug  dorks  and  druggists,  316. 

DHl'MMERS, 

within  protection  of  intnrstate  commerce,  74,  79,  294. 

licciinc  fiix  upon,  a  regidation  of  eommoree,  294. 
DRUNKARDS.     See  TIahitijai,  Drunkards. 


INDEX.  775 

[references  are  to  sections.] 

DUE  PROCESS  OF  LAW, 
applied  to  legislation,  20. 
and   Fourteenth   Amendment,   69. 

and  confinement  of  prostitutes  by  administrative  process,  244. 
in  commitment  of  insane  persons  to  asylum,  253,  254. 
in  commitment  of  children  to  reform  schools,  260-262. 
taking  of  property,  and  bankruptcy  laws,  307. 
and  trust  legislation,  355. 

taking  property  by  repeal  or  alteration  of  corporate  charter,  362,  363. 
and  unreasonable  regulation  of  railroad  charges,  380,  611. 
reasonableness  of  charges  can  only  be  established  by,  381,  386. 
in  case  of  attack  upon  government,  475,  n.  11. 
compensation   for  property   taken   for   public   use,   506. 
hearing  in  case  of  destruction  of  property  as  nuisance,  521,  531. 
in   killing   abandoned    animals,    523. 
in  forfeiture  of  property,  526,  527. 
change  of  legislative  policy  rendering  existing  property  useless,  538- 

540. 
and  equal  protection  of  laws,  611. 
EASEMENT, 

fee  of  street  in  adjoining  owner  and  public  easement,  160. 

of  public  for  use  of  navigable  water,  403-405. 

riparian  owner's  easement  of  access  for  navigable  streams,  408,  409. 

as  to  use  of  water  by  riparian  owners,  414. 

of  mutual  support,  424. 

of  drains,  ditches  and  private  roads,  427, 

ECONOMIC  INTERESTS, 

in  general,  12. 

attitude  of  government  towards,  15. 
EDUCATION, 

may  be  made  compulsory,  264. 

truant   schools,   265. 

state  control  of  private  schools,  266. 

graduate  instruction  and  state  control,  267. 

freedom  of  culture,  479. 

ELEVATORS.     See  Grain  Elevators. 
EMBALMING, 

regulation  of,   125,   132,  493. 

EMBANKMENTS.     See  Riparian  Owners. 

duties  of  riparian  owners  to  erect,  114,  409,  619. 
EMINENT  DOMAIN.     See  Compensation. 

exercise  for  public  purpose,  181. 

may  be  exercised  for  conversion  of  brook  into  navigable  river,  413. 

taking  of  property  by,  504-506. 

may  be  exercised  to  secure  raising  of  grade  of  land,  for  sanitary  pur- 
poses, 617. 


776  INDEX. 

[references  are  to  sections.] 

EMINENT    DOMAIN— continued. 

grant  of  power  of,  to  i)ublic  service  corporations,  659. 

corporation  exercising  must  be  granted  power  by  state  in  which  exer- 
cised, 718. 
EMIGRATION, 

from  United  States,  federal  power  of  controlling,  487. 

freedmen  of,  from  one  state  to  another,  488,  489. 

to  territories  of  United  States,  490. 
EMIGRANT   AGENT, 

tax  upon,  not  interference  with  interstate  commerce,  74,  79,  328,  489. 

requirement  of  license  fee  from,  328   489. 
EMPLOYERS'  LIABILITY, 

for  injury  to  laborer,  322,  633. 
KMPLOY^MENT   AGENCIES, 

regulation  of,  287,  328, 
EMPLOYMENTS.     See  Trades   and  Occupations. 

eanitary  regulations  in  certain,  131. 
ENGINEERS, 

licensing  of  railroad,  73. 

rules  prescribing  qualifications  of,  by  state,  80. 

licensing  of  mining  engineers,  115. 

licensing  of,  on  steamboats,  117. 

abandonment  of  train  by,  in  case  of  a  strike,  333,  452. 

cost  of  examination  of  railroad,  placed  upon  conmpany,  622. 

licensing  of,  by  administrative  officer,  648. 
ENGLISH  CONSTITUTION, 

relation  of  statutory  law  to,  17. 
ENGROSSING, 

common  law  rule  against,  200. 

Knglish  and  American  legislation  against,  338,  339. 
ENTAILS, 

introiluced  from  England,  367. 

abolished  by  statute,  591. 
EC^IJALITY   AND   EQUAL  PROTECTION   OF  THE  LAWS, 

of  participutirm  in  public  bciicfits,  23. 

violation  of,  in  statutory  deflnitiou   of  nuisances,   178. 

And  limitation  of  number  of  licenses  to  sell  liquor  or  engage  in  other 
buBiness,  211,  040,  672. 

and  wii<-nntr<i!lc(l  ailininiHtrative  disfrction,  642-645,  652. 

diHcri'liiiri  in  granting  lirjuor  or  other  licenses,  212. 

of  mule  and  female  laborers,  and  labor  legislation,  313,  314. 

Tiolation  of,   in   regulating   lionrs  of   labor  ;iiiil   payment   of  wages  in 
cortnin  iniluHlrifS,  31.'{,  314,  320,  321. 

and  f«'d(ral  Ifgislalion  as  to  Bcatnen,  3211. 

rcKulution  nf  chargeH  in  particular  biiHineH«es,  378. 

of  nervier,  by  corporations  affected  willi  [lublic  interest,  387-394. 

of  rhfirgeH  by  railroad  conii.anieH,  required,  390,  391,  392. 

uniformity  of  chargrs  and,  394. 


INDEX.  777 

[references  are  to  sections.] 

EQUALITY  AND  EQUAL  I'ROTECTION— continued. 

principle  of,  and  licensing  of  occupations,  497. 

natural  and  social  inequality,  603. 

political,    604. 

in  England,  France,  Prussia,  605-607. 

in  American  state  constitiutions,  608. 

under  Fourteenth  Amendment,   609-611. 

and  classification  for  police  regulation,  610,  682,  721-725. 

unreasonable  regulation  of  railroad  rates,  and  equal  protection  of  law, 
611. 

application  of  principle  of,  611. 

and  special  burdens  upon  persons  and  property,  in  general,  612-615. 

where  business  not  one  which  can  be  engaged  in  as  a  common  right, 
640. 

control   of  administrative   discretion   in   granting   licenses,   in   interest 
of,  653-655. 

and  natural  monopoly,  658-661. 

appointment   of   examiners   for   admission    to    certain    professions,    by 
associations,  673. 

prohibition   of   erection   of   new    establishments,   as   discrimination   in 
favor  of  those  in  existence,  687. 

civil  rights  legislation,  693,  694. 

separation  of  races  and,   700. 

discrimination  between  sexes  and,  701-703. 
ESTRAYS, 

impounding  of,  where  owner  not  at  fault,  635. 
EXAMINING  BOARDS, 

medical,  representation  of  different  schools  of  medicine  on,  153,  647. 
EXCHANGES, 

regulation  of  stock  exchanges,  202,  203. 

restrictions  as  to  membership  in,  345. 
EXCOMMUNICATION, 

a  form  of  social  control,  484. 
EXPATRIATION, 

right  of,  487. 

EXPLOSIVES, 

transportation  of  nitroglycerine,  within  state  control,  83. 
report  of  sale  of,  93. 

regulations  to  prevent  accident  in  transportation  of,  117. 
manufacture  and  storage  of,  119. 
prohibition  of  storing,  within  city  limits,  565. 

permit  to  store  cannot  depend  upon  uncontrolled  administrative  discre- 
tion, 643. 

EXPULSION   FROM  CLUBS, 

as  form  of  social  control,  484  note. 


778 


INDEX. 


[references  are  to  sections.] 


EX  POST  FACTO  LAWS.     See  Retroactive  Legislation. 
test  oath  cases,  544. 
and  prohibition  of  practice  of  medicine  because  of  conviction  of  crime, 

545,   546. 
EXPRESS    BUSINESS, 

agent  of,  engaged  in  commerce,  73. 

railroad  is  not  bound  to  furnish  accommodations  for,  to  all  companies 
alike,  395. 
FACTORIES, 

employment  of  children  in,  forbidden,  258. 

limitation  of  hours  of  labor  in,  131,  149,  316,  317,  735. 

limitation  of  hours  of  female  laborers  in,  311-314. 
FEDERAL  CONTROL, 

of  state  police  legislation,  69-84. 

summary  of  principles  of,  85. 
FEDERAL  POLICE  REGULATIONS, 

in  general.  65. 

as  to  commerce  and  navigation,  66. 

as  to  Indians  and  territories,  67. 
FELLOW-SERVANT   RULE, 

715  n.  42. 

abolished  with  regard  to  corporations,  with  regard  to  railroad  corpora- 
tion.s,  727. 
FENCES.     See   Division  .Fences. 
FENCING  RAILROAD  TRACKS, 

629,  637. 

FERTILISERS, 

inspection  of,  277. 

FERRIES, 

on  waters  between  states,  72  n.  0. 

exclusive  franchise  to,  and  prohibitions  of  monopoly,  668. 

exclusive   franchise  to,  as  contract,  675. 

municipal  power  to  grant  exclusive  franchise,  678. 

FIRE, 

regulation  of  Ijuilding  to  prevent,  33,  118. 

destruction  of  property  to  check  or  prevent,  118,  534,  535. 

owniTH  forbi<liliii  to  set  fire  to  their  own  buildings,  118. 

every  one  at  (ire  m.iy  In-  r((|iiirc(l  to  assist  in  extinguishing  it,  614. 

cjiuHcd  by  Hparks  from  locomotive,  and  liability  of  railroad,  628,  630, 

FIRE  INSrR.ANrE.     See  In.sukance. 
•  ompulHory  in  Germany,  432. 

KIRK  LIMITS, 

municipal    eHtablisliment    of,    33,    118. 

♦•BtaliliHlimftit  of,  when  power  iu)t  r-xpressly  given  to  cities,   141. 
fr;mic    liuilding   erected    within,    .'>28,    .')37. 

futablifihment  of,  and  existing  contracts   for  erecting  frame  building, 
556. 


INDEX.  779 

[references  are  to  sections.] 

FIKE   LIMITS— continued. 

uncontrolled   discretion   of   administrative   officer   in   allowing   erection 

of  wooden  buildings  within,  644. 
establishment  of,  does  not  affect  existing  frame  buildings,  685. 
FIRE   SALES, 

regulation  of,  292. 
FISH  AND  GAME, 

laws  protecting,   24. 

history   of   legislation,   418. 

methods  of  hunting  or  fishing  forbidden,  418. 

possession  of  in  closed  season,  unlawful,  418,  516,  635. 

constitutionality  of  legislation,  419,  422. 

laws  interfering  with  interstate  commerce,  420. 

summary  destruction  of  property  used  for  unlawful  fishing  or  hunting, 

527. 
game  unlawfully  killed  may  be  summarily  destroyed,  528. 
non-residents  of  state  may  be  charged  for  hunting  or  fishing  licenses, 
712. 
FLAG, 

legislation  forbidding  use  of,  in  advertisement,  63,  183,  729. 
FLOOD, 

action  of  state  to  prevent,  114. 
duties   of  riparian   proprietors,   114,  409,   619. 
flooding  land  by  mill  dams,  compensation  for,  410-413,  508. 
preservation  of  forests  as  means  of  preventing,  423,  619. 
FOODSTUFFS, 

regulations  to  prevent  sale  of  impure  milk,  32,  147. 
inspection  of,  and  commerce  power,  77. 
adulteration  of,  41,   129,   280. 

regulations  to  prevent  fraud  in  sale  of,  147,  279,  280,  282-284. 
taking  samples   for   inspection,   and  compensation   for,   519. 
sale   of  adulterated,   635,   723. 
FOREIGN  COMMERCE.     See  Commerce. 
FOREIGN   CORPORATIONS.     See  Corporations. 

distinction  between  carrying  on  commerce  in  state  and  exercising  cor 
porate  powers  in   state,   717,   718. 
FORESTALLING, 

common  law  rule,  200. 

English  and  American  legislation  against,  338,  339, 
FORESTS, 

protection  and  preservation  of,  423. 
when  required  for  protection  from  floods,  619. 
FORFEITURE, 

of  property  unlawfully  used  or  acquired,  judicial  process  in,  525-528. 
of   license   for   cause,   546    (n.    26). 

under  United  States  laws,  of  property  used  for  illicit  distillery,  627. 
FORNICATION, 

punishment  of,  240,  241. 


-jgQ  INDEX. 

[references  are  to  sections.] 

FOURTEENTH  AMENDMENT, 

control  of  state  police  power  under  it,  in  general,  69, 

protection  of  property  under,  84. 

legislation  for  health  and  safety,  and,  134. 
and  due  process,  244. 

and  power  of  majority  of  property  owners  to  bind  minority  in  crea- 
tion of  drainage,  441,  442. 

fundamental   rights   under,   445. 

equality   and   equal  protection   of  the  laws,   609-611. 

slaughter  house  cases,  609. 

protection   under,    from    administrative   discretion   in   issuing   licenses, 
655. 

protection   of   negroes   under,   692. 

protection  of  aliens  under,  706. 
i'KANCHlSE, 

to  occupy  streets  with  tracks,  requires  legislative  authority,  163,  658. 

right  to  incorporate  as  franchise,  358. 

to  use  streets,  under  special  act,  and  for  exclusive  use,  660. 

exclusive,  to  ferry  companies,  668. 

exclusive  franchise  as  contract,  675. 
KRAUD, 

in  general,  12. 

prevention  of  in  sale  of  oleomargarine,  77,  84,  146,  147,  284,  731. 

prevention  of  in  sale  of  milk,   147. 

preventive  measures  against,  272,  273-298. 

forms  of  legislation  against,   272. 

I)rohibition  and  regulation  to  prevent,  285. 

on  (Toilitors,  l»y  selling  stock  of  merchandise,  287,  n.  3. 

public  and  private  interest  in  prevention  of,  298. 
I'HKK  M.VSONS, 

(<xcin|»lirinH  of,  from  rest  rid  ions  on  otlior  associations,  481, 
I'inOSlI   MKATS.     Sec  Makkets. 

inspection  of,  as  regulation  of  <()mmerce,  77,  138. 

ref|iiire<l  to  he  sold  in  public  markets,  640. 
Kl'TrKKS.     See   Oi-tio.ns    ^vl•    Futures. 
(lAMMLINO, 

IfgJHlation   regarding,   189-203. 

police   jiowcr  ovr'r,    188. 

i-ontractH  nncnforccable,   Iim,    lltf),  lIOI, 

common  gamblerH,  191. 

dealing   in    fiiturcH   an,   201. 

forbidflr'ti    when    public,   4.')3. 

np[iiiratuH  for,  nummary  dcsf ruction  of,  526. 

rorovery  of  grimbling  Iohhph  against  owner  of  premises,  626, 

prohibition  of  book-making,   195,  730. 

gift  H.'iloH  an  appealing  to  gamlding  instinct,  293. 
(»AMHIJN(i   IlorSK, 

kt'e|)ing  of,  leginlation  agaiuHt,    191,    193,  722, 


INDEX.  781 

[references  are  to  sections.] 

GAMBLING    HOUSE— continued. 

bucket   shops,   202. 

recovery  of  gambling  losses  against  owner  of  premises,  who  allows  use 
as,  626. 

one  within,  presumed  to  know  character  of  place,  636. 
GAME.     See  Fish  and  Game. 
GAMES  OF  CHANCE, 

legislation  concerning,   190,  191. 

and  games  for  pastime  and  recreation,  189. 
GAMES  OF  SKILL, 

licensing  of,  192,  193. 
GAEBAGE, 

collection  of,  and  property  in,  522. 

business  of  removing  and   license,   641,   670. 

removal  as  monopoly,  670. 
GAS, 

waste  of  natural,  constitutionality  of  legislation  forbidding,  422. 

regulation  of  pressure  in  pipes,   556. 

charter  or  grant  to  company  to  erect  gas  works,  and  municipal  com- 
peting establishment,  677. 

exclusive  monopoly  to  gas  company  a  contract,  679,  680. 
GAS  COMPANY, 

forbidden  to  charge  for  meters,  394. 
GILDS, 

requirement  of  royal  license  for,  481. 

approval  of  ordinances  by  justices  of  peace,  481. 
GIFT   SALES, 

prohibition  of,  293. 
GOLD  CONTRACTS, 

prohibition  of,  308,  309. 
GOLD  AND  SILVER, 

requirement  of  stamp  upon,  to  prevent  fraud  in  sale  of  articles  made 
of,  281. 
GOTENBURG  SYSTEM, 

of  controlling  liquor  traffic,  219. 
GOVERNMENTAL  POM'ERS, 

division   of,    1. 
GOVERNMENT,  ATTACKS  UPON.     See  Libel,  Anarchism. 
GRADE  CROSSINGS.     See  Crossings,  Railroad. 

abolition  of,  548. 

abolition  of,  affecting  contracts,  556. 

distribution  of  cost  of  abolishing,  between  municipality  and  railroad, 
548,  631. 
GRAIN  ELEVATORS.    See  Warehousing. 

regulation  of,  297. 

regulation  of  charges  of,  372,  375,  376. 

prohibition  of  discrimination  in  rates  charged  by,  390, 

fees  for  inspectors  of,  borne  by  owners  of,  622. 


782 


INDEX. 


[references  are  to  sections.] 


GROUND  BENTS.    See  Eents. 
GROUND  SQUIRRELS, 

owner  required  to  exterminate,  618. 

HABITUAL  DRUNKARDS, 

sale  of  liquor  to,  205,  218,  226. 
punishment  of,  225. 
treatment  of,  compulsory,  227. 

asylum  for,  may  be  maintained  by  fees  from  liquor  dealers,  623. 
liability  of  dealer  for  sale  of  liquor  to,  when  person  not  known  to  be, 
635. 

HALL  MARK, 

on  gold  and  silver,  281. 

HANDBILLS, 

prohibition  of  distribution  on  streets,  158,  164. 

HARBOR, 

regulation  of,  by  state  and  federal  commerce  power,  72,  117,  135. 

harbor  lines,  establishment  of,  and  riparian  owners,  405,  406. 

cannot  be  parted  with  to  private  company,  574. 
HAZARDOUS  UNDERTAKING, 

special  rules  of  liability  in  connection  with,  621-638. 

HEALTH, 

growth  of  health  legislation,  111. 

police   regulations  to   protect,   122-183. 

control  of  caliiugs  affecting,  132,  133. 

legislation  and  Fourteenth  Amendment,  134. 

legislation  and  federal  commerce  power,   136-139. 

local  powers  for  protection  of  health,  140-142. 

questions  involved  in  health  legislation,  143-155. 

protection  of,  in  regulation  of  sale  of  food,  280-282. 

labor  legislation  as  a  sanitary  measure,  310,  314. 

compulsory  association  for  drainage  as  a  sanitary  measure,  442. 

destruction  of  house  for  protection  of  health,  520,  521  n. 

sanitary  regulations  in  houses,  128,  150,  542. 

roasonablencsH  of  r<'(|nircnuMits  of  sanitary  improvements,   150. 

removal  of  offensive  establishment,  as  sanitary  measure,  565. 

hiwH  against  overcrowding  in  lodging  houses,  728. 
IIO.MKSTEADS, 

exemption   from   liability   for  debt,  557,  567. 
IIOMK'IDK,  .TUSTll'IAULK, 

where  necesHary  to  suppress  riot,  88,  445  n. 

to  prev(;nt  an  escape,  415   n. 
IIOHSK  RACES.     See  Race  Couuses. 

g«'neral  regulation  of,    l!M. 

batting  at,   I!t5,  730. 

IIORHEHHOEING, 

act  regulating,  45>7,  688  n. 


INDEX.  78o 

[references  are  to  sections.] 

HOSPITALS, 

regulation  of  location  of,  in  cities,  141. 

license  to  conduct,  and  administrative  discretion,  643. 
HOTELS.     See  Inns  and  Lodging  Houses. 

punishment  of  fraud  in  obtaining  board  at,  731. 
HOURS  OF  LABOR.     See  Laborers. 

limitation  of,  in  general,  131,  155. 

limitation  of,  for  women,  149,  311-314,  735. 

limitation  of,  whether  sanitary  or  social  measure,  314. 

limitation  of,  for  adult  males,  316,  317,  735. 

limitation,  and  existing  contracts,  556. 

on  public  works,  310. 
HOUSES.     See  Buildings  and  Structures. 

street  numbers  on  houses,  41. 

sanitary  requirements  in,  150,  542. 

party  walls,  443. 

street  name  affixed  to,  519. 

destruction   of,   as  sanitary   measure,   520,   521   n. 

when  used  for  unlawful  purpose,  may  be  destroyed,  525. 
HOUSES   OF  CORRECTION.     See  Reform   Schools. 
ICE, 

on  navigable  waters,  common  property  of  people  of  state,  417,  note  26, 

removal  of,  from  sidewalks,  620. 
IGNORANCE  OF  FACT, 

not  excusing  from  liability,  635. 
ILL-FAME,  HOUSES  OF.     See  Prostitutes,  Prostitution. 

regulation  of,   243. 

frequenting,  97,  246,  722. 

confinement  to  particvilar  district  of  city,  179,  245,  689, 

keeping,  as  crime  or  disorderly  conduct,  157,  244,  245. 

as  common  law  nuisances,   245. 

liability  of  owner  of  house,  245. 

house  may  not  be  destroyed,  245,  525. 
IMITATION, 

of  butter,  by  coloring  oleomargarine,  32,  62,  284,  731. 

by  coloring  distilled  vinegar,  32. 

prohibition   of  established   imitation   products,   285. 
IMMIGRATION.     See  Migration. 

registration  of  immigrants,  45. 

law  of  1903,  65. 

state  power,  71. 

state  regulation  to  exclude  objectionable  classes,  101,  271. 

exclusion  of  diseased  persons  by  federal  legislation,  123. 

federal  exclusion  of  paupers,  271. 

federal  law  against  entry  of  anarchists,  478. 

exclusiveness  of  federal  power  over  foreign,  486,   705. 

freedom  of,  from  one  state  to  another,  488,  705. 

from  territories  of  United  States,  490. 


784  INDEX. 

[references  are  to  sections.] 

IMMORALITY.     See   Obscenity,   Fornication,   Prostitution. 

and  obscenity,  234-239. 

fornication,  240,  241. 

prostitution,  242-246. 
IMPORTS.     See  Commerce. 
INCORPORATION.     See  Corporate  Charter. 
INCRIMINATING  REPORTS.     See  Reports. 

immunity  from  prosecution  upon,  53,  54. 

distinction  between  compulsory  notice  and  compulsory  testimony,  54. 
INDETERMINATE  SENTENCE. 

constitutionality  of,  105,   106. 

judicial  determination  of  sentence,  106. 

control  of  prison  authorities  by  legislation,  106. 
INDIANS, 

federal  control  over  lands  of,   67. 

disqualified  from  giving  evidence  in  favor  of  or  against  white  men  in 
criminal  cases,  693,  n.  33. 

liquor  in  Indian  country,  526,  note  40. 
INEBRIATES.    See  Habitual  Drunkards. 

INFANTS.     See   Minors,    Children,    Parent   and   Child,   Women    and 
Children. 

infants'  boarding  houses,  license  for,  493. 
INFLAMMABLE    MATERIAL, 

regulation  of  transportation  of,  117,  119. 
INNS  AND  LODGING  HOUSES.     See  Boarding  Houses. 

registration  of  guests,  46. 

regulation  of,  175. 

rates,  regulation  of,  373. 

obligation  to  serve  all  guests,  388. 

laws  against  overcrowding  in,  728. 
INSANE, 

restraints  upon  the,  252. 

commitment  of,  to  asylum,  due  process  in,  253,  254. 

right  of  insane  person  to  apply  for  discharge,  255. 

private  asylum  for,  control  of,  256. 
INSPECTION, 

an   incident   of   regulation,   47. 

whtTo  a  violation  of  privacy,  47. 

Htate  laws  regarding,  ami    fcdcriil  cmiHtitutiou,  75,  276-278. 

of  food  BtuflTs,  77,  277. 

diHcriminution   by,  against   products   from   other  states,   77,   233. 

lift    means    «»f    rontrol,    9.T 

of  mines,    1 15. 

in  cuHH  of  contagions  diseases,  123. 

of  tenement  houses,   128. 

of  markets  and  slaughtor  hoiises,  129. 

of  cattle,   79,    136. 

diHcriminntion  against  other  states  by,  in  liquor  legislation,  233. 


INDEX.  785 

[references  are  to  sections.] 

i  NSPECTION— eontiniied. 

for  prevention  of  fraud,   276-278. 

discrimination  by  inspection,  laws  applicable  only  to  goods  imported, 
279. 

New  York  prohibition  of  laws  for,  278. 

taking  sample  for,  and  compensation,   519. 
INSURANCE.     See  Compulsory  Insurance. 

requirement  of  bonds  or  deposits  to  engage  in  business  of,  40. 

contract   of,   not  commerce,   78. 

speculative  element  in,  199. 

corporations  engaged  in,  subject  to  certain  conditions,   219. 

combinations  between  insurance  companies   forbidden,   340. 

restriction  of  business  to  corporations,  364,  401. 

regulations  of  rates  of,  375. 

legislation  against  discrimination   in  rates  of,  390. 

state    control,    399. 

ground  of  supervision  of  business  of,  400. 

compulsory,   432-437. 

compulsory  maintenance  of  fire  patrol  by  those  engaged  in,  615. 

state  may   exclude   foreign   companies,   716. 

prompt  payment  of  claims  by,  714,  727,  note  33. 
INTEREST.     See  Usury. 

regulation  of  rate  of,   302-304. 

regulation  of,  as  affecting  existing  contracts,  555,  557. 

premium,  in  addition  to,  in  ease  of  building  loan  associations,  733. 
INTERSTATE  COMMERCE.     See  Commerce. 
INTERSTATE  COMMERCE  ACT.     See  Railroads. 

public  interest,  business  affected  with,  analysis  of,  341. 

discrimination  by  railroads  forbidden,  391,  392. 
INTIMIDATION, 

by  organizations  of  labor,  of  other  laborers  or  employers,  332-334. 
INTOXICATING  LIQUORS.     See  Liquors. 
INTOXICATION, 

as  a  punishable  offence,  225. 
INUNDATION.     See  Floods. 
IRRIGATION, 

majority  of  property  owners  may  compel  minority  to  join  in,  127,  441, 

442. 
control  of  waters  needed  for,  414-417. 

ITINERANT  MERCHANTS.     See  Peddlers. 
license  required  of,  39,  289,  292. 
municipal  license,  tax  upon,  reasonableness  of,  39. 
definition  of,  289. 

uncontrolled  administrative  discretion  in  granting  license  to,  653. 
from  other  states,  and  interstate  commerce,   710. 

JUDICIAL  CONTROL, 

as  to  reasonableness,  63,  128,  150,  151. 

50 


786  •  immx. 

[references  are  to  sections.] 

JUDICIAL    CONTROL— continued. 

reasonableness  of  municipal  ordinances,  142,  158,  178,  179,  286. 

of  safety  legislation,   144. 

of   discretionary   power   in    administrative    officers   to    issue    liquor    or 
other  licenses,  209,  653-655. 

reasonableness  of  regulation  of  charges  of  business  affected  with  public 
interest,  379,  385. 

of  rates  determined  by  a  commission,  381,  382. 

jurisdiction  of  federal  court  over  rates  fixed  by  state,  382. 

of  administrative  determination  as  to  nuisances,  521,  526,  527. 

of  municipal  determination  as  to  nuisances,  531,  533. 

as  to  reasonableness  of  improvements  required  to  property,  549. 

as  to  reasonableness  of  rates  and  charges  determined  by  legislature, 
550. 

of  legislative  classification,   725,   736-738. 
JUDICIAL  CONTROL  OF  POLICY, 

under  written  constitutions,  16,  17. 

the  American  principle,  17,  20. 

Swiss  and  German   principle,   17. 

in  a  new  field  of  legislation,  21. 
JURY  SERVICE, 

exemption  from,  not  a  contract,  566. 
JUSTICE.  CIVIL  AND  CRIMINAL, 

administration  of,  as  function  of  government,  7. 

equality  in  administration  of,  610,  714. 

JUSTICES  OF  THE  PEACE, 

proceedings  before,  to  prevent  breaches  of  the  peace,  89. 

KNOWN    THIEVES, 

may  not  be  punished  unless  for  specific  acts,  96. 

others  may  not  be  forbidden  to  associate  with,  457. 
LABELS  (SIGNS,  MARKS,  STAMPS), 

indicating  ingredients  in  articles  of  food,  41. 

"convict  made,"  50. 

"tenement   made,"  51.  ' 

required  in  sale  of  oleomargarine,  284. 

LAHORKHS.    Sec  Hoirns  of  Labor,  Compulsory  Service,  Trade  Unions, 
WA(iK.s,  Women  and  Children,  Labor  Contract,  Strikes. 
legiHlafion  [irr>fecling,  and  attitude  of  courts,  21. 
notice  of  Htrike  to,  when  employed  to  take  place  of  strikers,  41. 
importjilion  of,  under  <'ontract,  65,  329,  486. 
rf'guhilioii  of  hours,  ami  condition  of  work  places,  131. 
limitation  of  hours  of  Labor,   155, 

limitation  of  hourn  of  labor,  as  affecting  right  of  contract,   15.''),  500. 
IcgiitlHtion   for  protection   of,   310-329. 

Btate  rogiil.'ition  of,  iijion  jmblic  works,  and  of  convict  labor,  310. 
hourH   of   female,   311-314,    7:55. 
bouM  of  adult  males,  310,  317,  735. 


INDEX.  787 

[references  are  to  sections.] 

LABOREES— continued. 

payment  of  wages  at  regular  intervals  and  in  cash,  319-321,  502,  735. 

contract  with  employee,   exempting  him   from   liability   for  injury   re- 
ceived  by,   322. 

penalty  for  leaving  without  notice,   323. 

fines  for  imperfect  work,  324. 

coercion  of,  by  employer,  in  exercise  of  right  of  voting,  325. 

coercion  by  employer,  against  membership  in  unions,  326,  735. 

blacklisting,   327. 

requirement  of  statement  by  employer  as  to  reason  of  discharge,  327. 

employment   agencies,   328. 

federal  power  of  excluding  foreign  laborers,  329. 

combinations  of,   330-337. 

combinations  to   raise  wages,   356. 

contract  of,  specific  enforcement  of,  448-452. 

contracts   of   seamen,   329,   451. 

specific   enforcement   of   contract,   when   business   affected   with   public 
interest,   333,  452. 

employer's  liability  for  injury  to,  when  not  due  to  laborer's  negligence, 
633. 

legislation    protecting,    applied    to    establishments    employing    certain 
number   of,    724. 
LABOR   CONTRACT, 

limitation  of  hours  of  labor,  as  affecting  right  of  contract,  155,  500. 

for  an  unreasonable  time,  449. 
no  specific  enforcement  of,  450-452. 
question  of  punishment  of  breach  of,  450-452. 
LAND, 

health  regulation   as  to,   127. 
restrictions  upon  alienation  of,  365-369. 
mortmain,  in  Europe  and  America,  368,  369,  592-596. 
perpetual   rents,   prohibition   of,    370,    589. 
long  leases,  371. 

streams  necessary  for  irrigation  of,  416,  417, 
private  roads  or  drains  across  land  of  another,  427. 
drainage  and   irrigation,   441,   442. 
division  fences,  444. 

conditions   against   alienation,   invalid,    515. 
entry  for  public  purpose  not  a  trespass,  518. 
boundary  monuments  may  be  erected  at  owner 's  expense,  519. 
abolition   of   feudal   tenures,   588. 
destruction  of  existing  perpetual  rents,  589. 
perpetual  covenants,   or  restrictions  upon   use  of  land,   590. 
entails,  591. 

lots   covered  with   stagnant   water   or  improperly   drained   may  be  re- 
quired to  be  filled  in,  617. 
owner  of,  may  be  required  to  destroy  noxious  weeds,  617. 
improvement  required,  reasonableness  of,  618.  / 


738  IxXDEX. 

[references  are  to  sections.] 

LAND — continued. 

requirement  that  animal  pests  be  destroyed  by  owner  of,  618. 

where  naturally  source  of  imniinent  danger,  owner  may  be  required  to 
take  reasonable  steps  to  avert,  619. 
LAUNDRIES, 

absolute  administrative  discretion  in  granting  permission  to  conduct, 

643. 
people  of  locality  concerned  given  right  to  decide  whether  to  permit, 

645. 

discrimination   against   Chinese   in   licensing,   and   Fourteenth   Amend- 
ment,  134,   655,   706.. 
LAW,  PRACTICE  OF.     See  Professions. 

legislative  power  of  determining  qualifications   for,   648. 

requirement  of  qualification  of  good  chara<ijter  to  engage  in  practice 
of,   651. 

admission    of    graduates    of    certain    schools    to    practice    of,    without 
examination,   673. 

qualifications   for,   and   legislation   applying   to    existing   practitioners, 
683,    684. 

right  to,  of  negi-oes,  under  Fourteenth  Amendment,  692. 

right  of  women  to,  702. 

exclusion   of  aliens  from,   706. 
LEASES, 

limitation  of  term  of,  of  agricultural  land,  371. 
LEGAL  TENDER, 

and  state  laws  regarding  payment  of  debts,  308,  309. 

retrospective  federal  hiws  affecting  contracts,  558,  559. 

scaling   laws,   560. 
LETTERS.    See  Post  Office. 

contract  by  letter  with  foreign  insurance  company,  717. 
LKVHIvS.     See  Embankments. 
LHWD.NESS, 

in  conduct,  235. 
MAHILITV,  ^ 

of  railroad   for  accidents,   79. 

employer  cannot  excmj)t  himself  from,  for  injury  to  laborer,  322. 

H|iociul  rules  of,  in  ironnection  with  hazardous  undertakings,  621-638. 

for  acts  of  pcTsons  employed  under  legal  compulsion,  624. 

iihHolule  liaitilily  without  fault,  ()29,  630,  632-634. 

penal  liability  and  fault,  635(538. 
LIBEL, 

Miyniiij;  of   HIjcIouh  articles,   55. 
fn-fdotii  of  n|»ccch,  and  law  of,  472,  473. 

HeditioiiH  libel,  or  libel  agaiiiHt  government   ,iinl  <ini<i;ilH,  472,  474. 

liorii   IIolt'H  opinion  regarding,  475,  n.   II. 
LIBEFiTV.     Sen  AssKMiti.v,  As.sociATioN,  PiiKss  and  Speech,  Personal 

LlflKKTV,    RKI,I(;KtN. 

gradutir>nfl    enumerated,    27. 


INDEX.  789 

[references  are  to  sections.] 

LIBERTY— continued. 

economic,  and  protection  of  classes  from  oppression,  299. 

in  general,  different  aspects,  445. 
LICENSE.     See  Discretion,  Discrimination,   Equality,   Liquors. 

conditions  attached  to,  24,  652,  note  22. 

as  a  matter  of  right,  in  liquor  traffic,  36,  206. 

as  a  police  measure,  37  and  note  38. 

discriminative  licenses,  38,  639. 

high  license  as  method  of  restriction,  39. 

as  means  of  control,  93,  494. 

of  mining  engineers  and  foremen,  115. 

of  ship  officers,  117. 

of  slaughter  houses  and  markets,  129,  639,  643. 

of  physicians,  133,  495. 

to  use  streets,  163,  168,  173. 

of  draymen,  peddlers,  auctioneers,  using  streets,  173. 

uncontrolled  administrative  discretiou  in  granting,  212,  642-645,  652. 

liquor  license  as  a  matter  of  judicial  discretion,  208-210. 

of  theaters,  251. 

limitation  of  number  of  licenses  to  sell  liquor  or  engage  in  other  busi- 
ness, 211,  640,  672. 

requirement  of,  for  private  asylum,  256. 

of  peddlers  and  itinerant  merchants,  289,  292,  653,  732. 

of  auctioneers,  290. 

where  discriminating  against  imported  articles,  294. 

required  of  emigrant  agents,  328. 

as  means  of  control,  in  insurance  and  banking,  401. 

as  contract,  561,  562. 

to  conduct  lotteries,  revocable,  563. 

liquor,  not  a  contract,  564. 

to  use  public  property,  573,  577. 

not  a  surrender  of  police  povcer,  575,  580,  602. 

perpetual  license  unreasonable,   581. 

revocable,  for  use  of  public  property,  582. 

business   established   under   license   of   reasonable   duration    as   vested 
interest,  580,  602,  681. 

requirement  of  good  character  as  qualification  to  secure,  651,  652. 

to  keep  noxious  establishments,  or  for  sale  of  liquor,  depending  upon 
consent  of  adjoining  property  owners,  645,  652. 

judicial  control  of  administrative  discretion  in  granting,  653-655. 

revocation  of,  power  of  administrative  authorities  with  regard  to,  546 
n.  26. 
LICENSE  OR  OCCUPATION  TAX.    See  License. 

distinguished  from  license  for  regulation,  37,  295. 

as  a  police  measure,  38. 
LIENS, 

subcontractor's,  and  owner's  liability,  626,  n. 

under  United  States  revenue  laws  upon  property  used  as  distillery,  627. 


790  INDEX. 

[references  are  to  sections.] 

LIFE, 

taking  of,  to  prevent  felony  or  escape  of  felon,  445  n. 
LIQUORS.    See  Saloons,  Wines. 

municipal  regulation  as  to  place  of  sale,  33. 

license  tax  upon  sale  of,  37. 

bond  required  of  liquor  dealers,  40. 

report  of  sales  of,  by  druggists,  43. 

internal  arrangements  of  rooms  for  sale  of,  52,  244. 

sale  of,  may  be  prohibited,  59. 

when  sale  prohibited,  exceptions  in  favor  of  medicinal,  mechanical  and 
sacramental  uses,  59,  221-224. 

state  police  power,  and  federal  commerce  clause,  76,  80,  81,  83,  230-233. 

original  package  doctrine,  81,  230-232. 

sale  forbidden  in  case  of  riot,  89,  n. 

license  for  sale  of,  refused  ex-convicts,  110. 

prohibition  of  manufacture  and  sale  of,  134.  . 

constitutional  basis  of  control  of,  204. 

regulation  and  proliibition,  205. 

license  as  matter  of  right,  206. 

uncontrolled  discretion  in  administrative  officer  to  grant  license,  212, 
654. 

regulation  of  traffic  in,  205-212. 

distinction  between  wholesale  and  retail  trade  in,  205. 

statutory  disqualifications  of  right  to  sell,  207,  229,  652. 

legal  distinction  between  fermented  and  distilled  liquors,  205,  214,  215. 

discretionary  power  of  licensing  to  sell,  208-210. 

limitation  of  number  of  licenses,  211,  640,  672. 

prohibition  of  sale  of,  213-217. 

state  prohibition,  214,  215. 

local  option,  213,  216,  217. 

public  monopoly  of  sale  of,  218,  219,  666. 

not  used  as  beverage,  220-224. 

sale  of,  as  medicine,  cannot  be  forbidden,  222,  223,  650. 

use  for  sacriunental  purposes,  224. 

excoHHive  use  of  intoxicating,  225-227. 

restrictions  upon  habitual  drunkards,  226,  227. 

state  power  over  and  federal  constitution,  228,  233. 

privilege  of  selling  not  a  right  of  citizenship,  229. 

i'iri|>I(iyni<'nt  of  women  in  sale  of,  244,  703. 

private  conHumption  of,  453-455. 

poHHcasion  of,  as  evidence  of  manufacture  or  sale,  455. 

Halo  and  conHiimption  of,  in  clubs,  AT^Ct. 

Btalufe  pniliibiting  distillation  of  grain  into,  and  grain  owned  at  time, 
516. 

may  be  destroyed  when  unlawfully  keyit  for  sale,  525. 

property  rondcrr-d  useless  by  proliibition  of  manufacture  and  sale  of, 
5.39,  r,U),  54(1. 

license  to  sell  or  manufacture,  not  a  contract,  362,  564. 


INDEX.  791 

[references  are  to  sections.] 

LIQUOKS— continued. 

special  license  fee  from  dealers  in,  to  maintain  asylum  for  inebriates, 
623. 

law  giving  action  for  damages  caused  by  intoxicated  persons,  against 
one  who  sells,  and  owner  of  premises,  626. 

sale  to  minor  or  habitual  drunkard,  not  knowing  him  to  be  such,  635. 

right  to  sell,  coufined  to  males,  640,  703. 

requirement  of  good  character  to  secure  license  for  sale  of,  651. 

license  to  sell,  depending  upon  consent  of  neighboring  property  owners, 
645,  652. 

regulations  applying  to  existing  saloons,  683. 

discrimination  between  city  and  country  districts  in  regulating  sale  of, 
688,  n. 

refusal  of  license  to  aliens,  207,  706. 

refusal  of  license  to  one  not  a  resident  of  state,  710. 

punishment  of  traflBc  in,   722. 
LITERATURE, 

sale  of  obscene,  forbidden,  237. 

when  depicting  immorality,  239,  479. 

literary,  scientific  and  aesthetic  interests,  479. 
LIVE  STOCK.     See  Cattle. 
LIVERY  STABLES, 

determination  of  location  of,  by  property  owners  of  districts,  645,  689. 

prohibition  of  erection,  of  new  stables,  as  discrimination  in  favor  of 
those  existing,  687,  n. 
LOCAL  OPTION, 

as  to  sale  of  liquors,  216,  217. 
LOTTERIES, 

prohibition   of,   59. 

excluded  from  mails  and  from  interstate  commerce,  65,  198. 

general  discussion  of,  196-198. 

importation  or  carrying  of  tickets  from  one  state  to  another  forbidden, 
198. 

license  to  conduct  a  lottery  not  a  contract,  362,  563,  674. 

revocation  of  lottery  grant,  and  contracts  affected  thereby,  556. 

possession  of  lottery  ticket,  punishable,  635.  ' 

LOW  LAND, 

raising  of  level  of,  required,  617. 
LUNATICS.     See  Insane. 
MACHINERY, 

inspection  of,  47,  119. 

police  regulations  for  protection  from  dangerous  machinery,  119. 
MALICE, 

malicious  interference,  334. 

malicious  erections,  426. 
MANUFACTURE, 

as  affected  by  commerce  power,  79,  281,  341,  342. 


792  INDEX. 

[references  are  to  sections.] 

MARKS.    See  Labels.  H.\ll  Marks. 
MARKETS, 

inspection  of  by  municipal  authorities,  129. 

municipal  markets,  129,  565. 

fresh  meat  required  to  be  sold  in  public,  641. 

municipal  monopoly  of,  669. 
MARRIAGE, 

polygamy,  federal  legislation  against,  67,  468. 

prohibition  of,  in   case  of   disease,   124. 

autonomistic,  or  without  observance  of  statute,  241. 

reports  of,  by  minister  solemnizing,  613. 

between   blacks  and   whites,   prohibited,   697. 

marital  rights  may  be  confined  to  those  living  in  state  creating  rights, 
709. 

married  woman's  liability  for  family  expenses,  567. 
ME.-VSURES.     See  Wek.hts  and  Measures. 
.ME.\T.     See  Fresh  Meat. 

MEDICINE.     See  Physicians. 

practice  of,  ex-convicts  excluded  from  in  New  York,  110,  346,  545. 

regulation  of  sale  of,  in  interest  of  health,  130. 

qualifications  required  for  practice  of,  133,  152-154. 

neglect  of  parents  to  call  medical  aid  for  those  in  their  custody,  133. 

legislative  discrimination  against  certain  schools  of,  in  regulating  prac- 
tice of,   152-154. 

treatment   other  Ihan  medical,   154,  468. 

sale  of  liquor  as,  222-223,  650. 

vivisection,    249,   480. 

exclusive  selling  arrangements  and  rebates,  346. 

comf)ul8ory  medical  treatment,  468. 

freedom  of  medical  science,  479. 

regulations   for  admi.ssion   to   practice   of,   applied   to   existing   practi- 
tioners, .')42. 

examining  board  for  jjractice  of,  representation  of  various  scliools,  upon, 
153,   647,   673. 

dincrimination  against  system  of,  by  examining  board,  647. 

pr(>|>rielary  medii-ines,  limitation  of  sale  to  druggists,   149,  650. 

requirement  of  residence  in  state  wlicro  practicing,  711. 
MKJKATION.    See  Immkiration. 

and  Hettlement,  freedom   of,  485-491. 

freedom  of,  within  stale,  491. 
MILITARY  OPERATIONS. 

di«truilion  and  .•i|)|in)i)riation  of  i)ro|)('rty,  536,  537. 
MILITARY  OROANIZATIONS.     See  AuMEn  RontER  of  Men. 

prohibition   of   voluntary   organizntions,  91,   482. 

conwriplionM,   flM,    n. 

MILITARY  TKLKCRAPII   LIXKS. 

(•(iritriil   iif     ill    llini'  nf   w;ir,   471. 


INDEX.  793 

[references  are  to  sections.] 

MILITIA, 

organization  of,  under  state  law,  91. 

release  from  service  in,  because  of  religious  scruples,  469. 

exemption  from  service  in,  566. 
MILK, 

prohibition  of  sale  of  adulterated,  32,  147. 

sale  of  milk  from  diseased  cattle,   129. 

conditions  attached  to  license  to  sell,  652,  note  22. 
MILL  DAMS, 

power  of  states  to  authorize,  72. 

flooding  of  other  property  by,  410-412,  508. 

obligation  to  provide  passageway  for  fish,  419. 
MINES, 

legislation  for  safety  of  miners,   115. 

employment  of  children,  forbidden,  258. 

miners  paid  by  weight,  to  have  weighers  chosen  by  them,  274. 

prohibition  of  female  labor  in,  311. 

hours  of  labor  in,  legislation  limiting,  155,  316,  735. 

weekly  payment  acts,  and  company  store  orders,  319-321. 

fees  of  mine  inspectors  borne  by  owners  of,  622. 

state  license  of  foreman,  and  liability  of  owner  of  mine,  624. 

employment  of  mine  manager  required  and  penalty  for  noncompliance, 
638. 

requirement  of  license  for  mining  of  phosphate,  644. 

legislation  for  protection  of  miners,  applied  to  mines  over  certain  size, 
724,  727. 
MINORS.    See  Parent  and  Child,  Women  and  Children,  Children. 

refusal  of  license  to,  for  sale  of  liquors,  209. 

sale  of  liquors  to,  205,  218,  258. 

control  of,  257-267. 

restrictions  upon  adults  in  dealings  with,  258. 

reasonableness  in  regulation  as  to,  259. 

employment  of,   as  actors,   259. 

curfew  ordinances,   259. 

commitment  of,  to  reform  school,  260-263. 

state  control  of  education  of,  264-266,  479. 

sale  of  liquor  to  one  who  represents  himself  as  of  age,  liability  for, 
635. 
MISCEGENATION, 

prohibition  of,  697. 
MISDEMEANOR, 

distinguished  from  felony,  26. 

arrest  for,  without  warrant,  87. 
MONOPOLY.    See  Combinations  in  Restraint  of  Trade;  Trusts;  Con- 
spiracy, Law  of. 

legislative  creation  of,  by  requiring  use  of  specific  article,  prohibited, 
34,  673. 

state  establishment  of,  142. 


794 


i>;dex. 


[references  are  to  sections.] 


MONOPOLY — continued. 

creatiou  of,  by  limiting  sale  of  legitimate  article  to  one  class  of  per- 
sons, 149,  650. 

in  professions,  by  choosing  examiners  from  certain  bodies  of  practi- 
tioners, 56,  673. 

public,  of  sale  of  liquors,  218,   219,  666. 

of  sale  of  liquors  to  private  corporation,  as  means  of  police  contiol, 
219,  669. 

English  and  American  legislation  against,  338,  339. 

prohibition  of  attempts  at,  340,  341. 

common  law  rule  and  its  application,  343-353. 

corporate,  illegal,  352. 

when  is  monopoly  point  reached,  353,  354. 

grant  of,  in  corporate  charter,  363. 

regulation  of  rates,  where  business  is  legal  or  virtual  monopoly,  376- 
378. 

requirement  of  equal  service  by,  387,  388,  393,  667. 

regulations  for  public  convenience,  398. 

abrogation  of  monopoly  and  contracts  affected  thereby,  556. 

exclusive  license  to  use  streets,  and,  574,  577. 

abolition  of  gild  or  trade  monopoly,  and  compensation  for  loss  thereby, 
587. 

history  of,  in  English  law,  656. 

American  constitutional  provisions  against,   657. 

natural  monopoly,  658-662,  680. 

patent  and  copyright,  663-665. 

state  monopoly,  666. 

municipal  monopoly,  667. 

private  ferry  monopoly,  668. 

exchi.sive  license  and,  670. 

government  in  creating,  does  not  surrender  its  control,  671. 

limitation  of  number  of  licenses  and,  672. 

revocability  of  grant  of,  674. 

exehjHive  charter  right,  675. 

charter  not  recognized  as  exclusive  unless  necessary,  676. 

grrant   of,   as   contract,  677-680. 

perpetual,  or  limited  in  time,  681. 

in  pxisting  establishments  by  prohibition  of  erection  of  new  ones,  687. 
MO.NTMK.NTS, 

of  history  or  art,  preservation  of,  14. 

boumlary,  may  be  erected  at  owners'  expense,  519. 
MORMON  (irURriT, 

fedf'nil  legiHlation  against  polygamy,  67,  468. 

|>rop«'rty  held   by,  congreHsionnl  legislation   as  to,  .596. 
MOHTMAF.N, 

legiHlatif>n  in   England,   368. 

legiHlation  in  T'nilfd  States,  369,  466. 

neon  In  ri  Bat  ion  of  church  lands,  592. 


INDEX.  795 

[references  are  to  sections.] 

MORTMAIN— continued. 

suppression   of   monasteries   in   England,   593. 

application  of  principle  in  states,  594,  595. 

the  Mormon  church  case,  596. 
MUNICIPAL   CORPORATION, 

power  over  location  of  establishments  affecting  health,  140,  141. 

construction  of  powers  of,  141,  142. 

prohibition  of  gold  contracts  by,  309. 

state  regulation  of  municipal  employment  of  labor,  310. 

licenses  by,  for  use  of  street,  574. 

revocable  license  by,  for  use  of  street  and  exercise  of  power  to  revoke, 
581,  582. 

must  have  legislative  authority  to  grant  franchise  for  street  railroad, 

163,  658. 
creation  of  monopoly  by,  667,  669, 

grant  by,  to  company  and  establishment  of  competing  enterprise,  677. 

power  to  grant  exclusive  franchise,  678. 
MUNICIPAL  REGULATION.     See  Streets. 

offensive  trades  and  establishments,  42,  150,  158,  178,  179. 

reasonableness  of,  33,  63,  286. 

establishment  of  fire  limits,  33,  118,  141. 

as  to  places  for  sale  of  liquors,  33. 

license  when  business  legal  by  state  law,  38. 

as  to  cemeteries,  125,  141,  529,  687. 

of  markets  and  slaughter  houses,  129,  640,  643,  669. 

in  interest  of  health  and  safety,  140-142. 

construction  of  municipal  power  of  regulation,  141,  142,  158,  n.  9. 

regulation  must  tend  to  remove  danger,  148,  687. 

for  public  order  and  comfort,  156. 

where  matter  is  covered  by  state  law,  157. 

when  affecting  commerce,  159. 

of  streets  and  their  use,  160-164. 

of  offensive  establishments,  177-179,  529-531,  533. 

of  theaters  and  public  performances,  251. 

to  prevent  fraud,  reasonableness  of,  286. 

by  license  fees,  reasonableness  of,   286,   292. 

of  water  and  other  rates,  374,  n. ;   382,  n.;  570,  571. 

license  to  use  streets  for  term  of  years,  574-577. 

revocable  licenses  under,  and  municipal  power  to  revoke,  581    582 
MUNICIPAL  TRADING, 

and  private  industry,  23  and  n.,  666. 

and  monopoly,   667. 
NATIONAL  EXISTENCE, 

governmental  functions  for  maintainance  of,  4. 
NATIONALITY, 

interests  of,  479. 
NAVIGABLE  WATERS.    See  Bridges,  Riparian  Owners,  Wharfs,  Water 
AND  Watercourses. 


796 


INDEX. 


[UEFERENCES  ARE  TO  SECTIONS.]. 


NAVIGABLE  WATERS— continued. 

freedom  of  navigation  upon,  72. 

where  congress  has  not  acted,  72. 

local  regulations  of  as  to  bridges,  dams,  72,  80,  159. 

encroachments  upon,  by  piers  and  bridges,  163,  407. 

obstruction  on,  may  be  forbidden,  170, 

use  of  for  warehouses,  and  business,  regulation  of,  170. 

and  riparian  owners  of  submerged  land,  403. 

where  non-navigable  made  navigable,  compensation  to  riparian  owner, 
407,  409. 

state  power  over  fish  in,  420. 

federal  power  to  order  alterations  in  structures  interfering  with  navi- 
gation, 549. 

grant  of  exclusive  right  of  navigation  by  state  for  improvement  of 
river  so  as  to  be  suitable  for  navigation,  661. 
NAVIGATION.    See  Navigable  Waters,  Vessels,  Pilotage. 

toasting  trade,   65. 

federal  regulations  of,  66. 

regulations  for  safety  of,  117. 

interest  of  riparian  owner  subject  to  easement  of,  404. 

structures  interfering  with,  549. 

NEGROES, 

fri'o  negroes  before  Fourteenth  and  Fifteenth   Amendments,  691. 

federal  and  state  civil  rights  legislation,  693,  694. 

tvjual  service  to,  by  public  service  companies,  695. 

prohibition  of  marriage  with  white,  697. 

separation    from   whites  in   schools,   698. 

HC|)aratc  aeconuiKidations  in  public  conveyances,  699. 
NEIGHHORS'  RIfiHTS.     See  Land. 

easement  of  support,  424. 

underground  natural  waters,  425. 

malicious    erections,    426. 

jirivate  roads  or  drains  across  land  of  another,  427. 

jtarty  walls  and  division  fences,  443-444. 

NEWS  AGENfTER, 

reqwireinent  of  service  by,  to  all   wishing  it,  387. 

legiMJalion  against  discrimination  in  ciiargcs  by,  390. 
NITROGLYCI'lRlNi:.     See  EXPLOSIVES. 

iranHportutioii  of,  within  state  control,  83. 
NONHEHI  DENTS, 

rifjIilM  of.  under  constilution,  708-712. 

non  resident  creditors  of  iiiKolvent,  709. 

running  of  statute  of  limitationn  against  non-resident  plain! ill,  709. 

iiH  fruHleen  innler  doods  of  trust,  709. 

UH  ••xecntorH  or  iidniinistralorH,  70f). 

in  what  avocations  lliey  may  be  discriniinated  against,  710,  711. 

exclusion  from  proprietary  resources  of  state,  712. 


[references  are  to  sections.] 

NOTICES, 

of  rates  in  emigrants'  boarding  houses,  41. 

posting  of  rates  by  railroad  company,  41,  73. 

posting  of  prices  of  bread  in  Germany,  41. 

where  of  prejudicial  character,  49-51. 
NOXIOUS   WEEDS, 

legislation  against,  120. 

owner  of  land  may  be  required  to  destroy,  617. 
NUISANCES.     See  Offensive  Trades  and  Establishments. 

common  law  of  and  police  power,  29,  616,  617. 

classification  of,  in  Illinois,  33. 

municipal  power  to  abate,  140,  141,  156. 

obstruction  of  streets,  a  nuisance,  168,  169. 

parades  and   processions  as,   174, 

offensive  establishments,  176-179,  529-533,  565. 

cemeteries  as,  178,  530,  565. 

keeping  of  gambling  house  a  nuisance,  191,  193. 

obscenity  as,  235. 

house  of  ill-fame,  245. 

public  cruelty  to  animals  as,  248. 

public  entertainments  as,  250. 

private,  whether  subject  to  police  power,  426. 

per  se,  administrative  action  and  judicial  hearing,  521,  531,  602. 

discussion  of,  in  general,  520-524. 

where  property  abated  as  nuisance,  it  must  be  destroyed,  528. 

must  either  be  result  of  human  action  or  inaction,  616. 
OATH, 

required  of  members  of  associations,  481. 

test  oath  uses,  544. 
OBSCENITY, 

in  publications  and  performances,  236,  237. 

in  public  amusements  and  theatrical  performances,  251. 

and  scientific  publications  on  offensive  subjects,  238,  479. 

obscene  prints  as  nuisance  per  se,  520. 
OBSTRUCTION, 

of  streets,  169. 
OBJECTS  OF  GOVERNMENT, 

three-fold  division  of,  4. 
OCEAN, 

police  of  ocean,  66. 
OCCUPATIONS.    See  Trades  and  Occupations. 
OCCUPATION  TAX.    See  License  Tax. 

OFFENSIVE  ESTABLISHMENTS.     See  Offensive  Trades  and  Estab- 
lishments. 
OFFENSIVE  TRADES  AND  ESTABLISHMENTS.     See  Laundries,  Liv- 
ery Stables,  Slaughter  Houses. 

may  be  restricted  as  to  location,  141. 

regulation  of,  176-179. 


798  I.XDEX. 

[references  are  to  sections.] 

OFFENSIVE  TKADES  AND   ESTABLISHMENTS— continued. 

confinement  of,  to  specified  districts  of  city,  179,  533. 

municipal  regulation  and  abatement  as  nuisances,  529-531,  565. 

under  foreign  laws,  o32. 

licenses  limited  in  time  to,  580. 

decision  by  the  people  as  to  whether  location  shall  be  vrithin  district, 
645. 

municipal  power  to  prohibit  future  erection  of,  687. 

confining  to  a  part  of  city  as  discrimination,  689. 
OLEOMARGAEINE, 

requirement  of  coloring  which  renders  unsalable,  49,  58,  62. 

legislation,  in  general,  62,  282-284. 

state  power  over  use  in  federal  institutions,  67. 

a  lawful  article  of  commerce,  77,  84. 

coloring  of,  to  imitate  butter,  forbidden,  32,  62,  77,  282,  284,  731. 

state  prohibition  of  manufacture  and  sale  of,  62,  134,  283,  541. 

federal  law  regarding,  81,  u. 

attitude  of  federal  courts  toward  legislation,  84,  137. 

imported  in  original  packages,  137,  284. 

prohibition  of,  as  sanitary  measure,  145-146. 

regulations  to  prevent  fraud  in  sale  of,  147,  282. 

labelling  of  packages  of,  282. 

property  rendered  useless  by  prohibition  of  manufacture  of,  541,  547. 

prohibition  of  coloring,  when  butter  is  permitted  to  be  colored,  731. 
OPIUM, 

possession  of,  made  as  misdemeanor,  455. 
OPTKIAXS, 

roiniiremcnt  of  license,  493. 
OPTIONS  AND  FUTURES, 

dealing  in,  prohibition  of,  59,  201,  730. 

legality   of,   200. 

legislation  resl raining,  201. 

foreign  legislation  as  to,  203. 
ORIGINAL  PACKAGE  DOCTRINE, 

an  )i|iplied  to  lirjuors,  and  Wilson  Act,  80,  230-233. 

apfilied  to  foreign  commorce,  HI. 

applied  to  interslate  comniprce,  81,  137. 

Btatntnry  and  judicial  modifications  of  doctrine,  81,  85. 

retail  packagcH  and,  H],   l.'i7,  295. 

oloomiirgarine  in,  137,  284. 
OSTEOPATHY, 

and  regulation  of  practice  of  medicine,  132-4. 
PACKA(iK, 

requirement   of  certain    form   :ind   wciglit    of,   in   sale  of  certain   com- 
moditicH,  75,  274,  276. 

PAHADKS  AM)   PROCKSSIONS, 
afl  nuiHancen.    171.  039. 


INDEX.  799 

[references  are  to  sections.] 

PAEADES   AND  PEOCESSIONS —continued. 

discrimination  in  allowing  use  of  streets  for,  467,  480,  729. 

uncontrolled  discretion  in  police  to  allow  or  prohibit,  174,  643,  644,  729. 
PARDON.    See  Conditional  Pardon. 
PARENT  AND  CHILD.     See  Children,  Minors. 

right  of  parent  and  commitment  of  child  to  reform  school,  260. 

notice  to  parent  of  proceeding  to  commit  child,  262. 

compulsory  education,  264. 

truant  schools,  265. 
PARKS, 

regulation  of  use  of  by  public,  167,  171. 

use  of,  for  public  meetings,  174,  481,  644. 

regulation  as  to  nature  of  buildings  adjoining,  181,  514, 

exclusive  privilege  to  conduct  business  in  public,  670 
PAROLE, 

of  convicted  persons,  105,  106. 

as  means  of  police  supervision,  107. 
PARTICULAR    BURDENS.      See   Railroads,   Abutting   Owner,   Land, 
Civil  Damages  Acts. 

person  or  property  burdened,  as  responsible  for  danger,  612. 

in  general,  612-638. 
PARTY  WALLS, 

legislation  permitting  building  without  consent  of  neighbor   443 
PATENTS,  ' 

federal  power,  65. 

and  state  police  control,  131. 

history  of  rights  of,  663. 

federal  legislation,  664. 

exercise  of  privilege  for  public  benefit,  665. 
PATENT  MEDICINES, 

sale  of,  restricted  to  druggists,  149,  650. 

PATENTED  INVENTIONS, 

use  of  required  in  municipal  undertakings,  question  of  monopoly,  673, 
n.  42. 

PATROL, 

of  police  officers,  86. 
PAUPERS, 

and  idiots  may  be  excluded  by  state,  83,  271. 

excluded  from  immigration  into  United  States,  271. 

compulsory  support  of  poor  by  relatives,  270. 

compulsory  removal  of,  to  their  places  of  settlement,  271. 

restriction  to  place  of  settlement,  271,  491. 

persons  likely  to  become  chargeable  not  paupers,  271,  491. 
PAWNBROKERS, 

reports  of  dealings,  43,  93. 

limitation  of  rate  of  interest  to  be  charged  by,  303,  733. 

incorporated  pawners'  societies,  303, 


800  INDEX. 

[references  are  to  sections.] 

PEACE, 

surety  to  keep  peace,  by  one  who  has  threatened  breach,  89. 

bond  required  of  one  guilty  of  breach  of,  109. 
PEDDLERS.    See  Itinerant  Merchants. 

discriminatory  tax  upon,  when  selling  articles  from  another  state,  74. 

state  license  of,  does  not  exclude  municipal  regulation,  157. 

may  be  forbidden  to  use  streets,  173. 

regulation  of  and  peddling,  288,  289. 

of  imported  articles,  and  freedom  of  commerce,  294,  295. 

administrative  discretion  in  licensing,  654. 

non-resident  peddlers  and  interstate  commerce,  710. 

exceptions  in  favor  of  those  selling  wares  of  their  own  production,  732. 

exception  in  favor  of  those  who  have  served  in  the  army,  732. 
PENALTIES, 

as  sanctions  of  police  legislation,  26. 

must  be  proportioned  to  offense,  26,  638. 
PENAL  LIABILITY, 

of  railroad,  for  accidents,  637. 

of  corporation  in  recovery  of  damages  against,  637,  714,  727. 
PENSIONS, 

conditions  attached  to  grant  of,  24. 

fund  for  teachers',  by  deductions  from  salaries,  436. 
PERPETUITIES, 

conimou  law  rule  against,  367. 
PERSONAL  LIBERTY, 

and  limitation  of  hours  of  labor,  317. 

and  acts  regulating  payment  of  wages,  323. 

discussion  of,  446-452. 

private  consumption  of  liquors,  453-456. 

frcodom  of  social  intercourse,  457. 
PETITION, 

frociioin  of,  480. 
I'HAHMACIHTS.     See  Druugists. 

control  of  calling,  as  sanitary  measure,  132. 
r'TTOTO(;i{APHINr!, 

for  idiMitificalion  of  one  not  adju<lged  guilty  of  any  offense,  103. 
I'HVSICIANS.     See  MEmciXE,  Vestkd  Kk.iits. 

compulHory  association  of,  56. 

cx-r(»nvii;tH  exfliulcd  from  practice  as,  110,  545,  546. 

requircmcntH  for  inacticu  :ih,  133. 

regiilatione  apjilying  to  those  already  practiciiifr  ;is,   543. 

may  be  rcfinirfd  to  report  births  and  deaths,  613. 

not  ror|iiir«Ml  to  rrndfr  professional  scrviccH,  i'uti),  u.  10. 

election  of  mcdirul  cxamincr.s  by,  as  creation  of  monopoly,  673. 

leginlation,  fixing  qualifications  exempting  those  of  a  .•crtain  niinilMr  of 
ycMTH'  practice,  683,  684,  711. 

qiinlifii-ationH  (•:iniiof  be  so  fixrd  -ah  to  oust  lliosn  practicing  as,  685. 

requirement  of  residence  in  state  where  practicing,  711. 


INDEX.  801 

[references  are  to  sections.] 

PICKETING, 

illegality  of,  333,  335. 

treated  as  obstruction  of  streets,  169. 
PICTURES,  OBSCENE, 

prohibition  of,  237. 
PIERS.    See  Wharfs,  Piers  and  Docks. 
PILOTAGE, 

regulation  by  state  when  congress  has  not  acted,  72,  80,  117,  135. 

compulsory  employment  of  pilot,  and  ship's  liability  for  damages  be- 
cause of  his  fault,  625. 

PINKERTON  MEN.    See  Armed  Bodies  of  Men. 
PLACARDS, 

carrying  through  streets,  as  obstruction,  169. 
PLUMBING, 

inspection  of,  by  health  authorities,  47,  128. 
control  of  business  of,  132. 

examination  of  those  engaging  in  business  of,  684,  732. 
discrimination  in  favor  of  corporations  in  licensing  plumbers,  732. 
POISONS, 

report  of  sale,  43. 

sale  forbidden  except  upon  responsible  prescriptions,  93. 
sale  in  labelled  packages,  119. 
POLICE, 

use  of  term,  2. 
POLICE  OFFICERS, 

duties  of,  86,  note. 
POLICE  PATROL, 

as  a  means  of  preventing  crime,  86. 
POLICE  POWER, 

vagueness  of  term,  1,  3. 
definition  of,  3,  8. 
limitation  of  the  term,  8. 
general  divisions  of  the  subject,  9,   10-14. 
specific  limitations  upon,  18. 

attitude  of  government  toward  the  different  interests  covered  by,  15. 
general  limitations  upon,  19,  20. 
methods  of,  in  general,  22,  27-35. 

cannot  be  contracted  away,  24,  362,  556,  561-564,  575. 
distinguished  from  other  governmental  powers,   25. 
and  criminal  law,  26,  272,  635. 
in  a  federal  state,  64. 
federal  police  legislation,  65-67. 
taking  of  property  under,  in  general,  511-517. 
license  limited  in  time  not  a  surrender  of,  580. 
POLICE  SUPERVISION, 

of  criminals  after  expiration  of  sentence,  110. 
51 


gQ9  INDEX. 

[references  are  to  sections.] 

POLICY.    See  Judicial  Control. 

judicial  opposed  to  legislative,  21. 
constitutioual  overriding  legislative,  297. 
POLITICAL  INTERESTS, 

protected  by  bills  of  rights,  14.  , 

attitude  of  government  toward,  15. 
POLITICAL  PAETIES.    See  Association,  Right  of. 

early  probilutiou  of  political  association  in  England,  482. 
regulation  of,  and  primary  election  laws,  483. 
POLYGAIMY.    See  Marriage. 

federal  legislation  against,  in  territories,  67,  468. 
POOLING, 

by  competing  interstate  railroads,  forbidden,  341. 
POOR  RELIEF.    See  Paupers. 
POSITIVE  STANDARDS, 
of  purity  in  food,  29. 
in  building  regulations,  29. 

legal  standards  usually  below  customary  standards,  30. 
POSSE  COMITATUS, 

slieriflf  authorized  to  call  out,  when  necessary,  614. 
POSSESSION.    See  Land. 

temporary  disturbance  of,  518. 
as  evidence  of  wrongful  act,  635. 
POST  OFFICE, 

secrecy  of  letters,  48,  666,  n. 

lotteries  and  obscene  literature,  65,  198,  236,  246. 
as  [)ublic  monopoly,  666. 
POSTING, 

railroad  rates,  41. 

hours  for  meals,  etc.,  in  factories,  41. 
I'RF-:SUMPT10N, 

of  fault  or  guilt,  546,  628,  635,  636. 
PRIMARY  ELECTIONS, 

regulation  of,  483. 
PRIMARY  SOCIAL   IXTFRRSTS, 
in   general,    10. 

attitude  of  government  towards,  15. 
I'RIVATK  CONDUCT,  LIRERTV  OF.     See  Personal  Liability. 
I'klVATK  IXTKRIOST, 

wlu'tlier  it  justifliw  exercise  of  police  power,  298,  426,    127. 
I'inZIO  FKillTS. 

proliibitiiin  nf,  L'48. 
I'IMXKS, 

ill   lutterieH  (If   for  merit,    l'.t8. 
I'KOCKSHIONS.     See  Pakades, 
ruoKKHHIONS.    Hen  PiiYsi(;iAN.s,  :ind  TiAw,  Practice  of. 

relroiictivn  logiHhilion  as  to  (|ii:ilificatioiiH  for  [iraclieo  of,  544,  545. 
expeiiHO  of  ex.'iiniii.'if ion   for  inliniHsioii   to,  borne  by  aj)plicants,  622. 


INDEX.  803 

[references  are  to  sections.] 

PEOFESSIONS— continued. 

qualifications  for  practice  of,  646. 

requirement  of  qualifications  usually  prospective,  646. 

discrimination  in  tests  of  fitness,  647. 

practice  of  law,  648. 

privileges  accompanying  professional  license,  650. 

requirement  of  good  character  as  qualification  to  engage  in  practice  of, 
651. 

legislation  fixing  qualifications  for  admission  to,  exempting  practition- 
ers of  certain  number  of  years,  683,  684. 

qualification  could  not  be  fixed  which  would  oust  existing  practitioners, 
685. 

restrictions  upon  women,  702. 

restrictions  upon  aliens,  706, 
PROHIBITION, 

restraint  distinguished  from,  28. 

in  general,  58. 

by  regulation,  58. 

of  useful  businesses,  59,  62. 

what  may  be  prohibited,  59. 

federal  power  in  matter  of  commerce,  65. 

state  power  in  regard  to  manufacture  of  liquor,  76. 

of  manufacture  and  sale  of  oleomargarine,  62,  134,  283. 

within  city,  of  establishments  likely  to  become  nuisances,  141. 

and  regulation  in  liquor  traffic,  205. 

of  liquor  traffic,  213-217. 

state  prohibition,  214,  215. 

local  prohibition  and  local  option,  216,  217. 

principles   governing  regulation   and   prohibition  in  preventing  fraud, 
285. 

private  consumption  of  liquors,  whether  it  may  be  prohibited,  454,  455. 

property  rendered  useless  by,  538-541. 

of  future  establishments,  as  creating  monopoly  in  existing,  686. 

harmless  and  useful  articles  cannot  be  forbidden,  285. 
PEOPERTY.     See  Land,  Vested  Eights. 

protection  of,  under  Fourteenth  Amendment,  84,  445. 

taking  of,  by  unreasonable  regulation,  178,  179. 

regulation,  without  compensation,   180,   181. 

power  to  alter  corporate  charters  cannot  be  used  to  destroy,  362,  363. 

freedom  of,  from  restrictions  upon  alienation,  365-369. 

devices  for  tying  up,  366. 

perpetuities,  rule  against,  367. 

legislative  control  of  devolution  of,  after  death,  367. 

mortmain,  statute  of,  and  American  legislation,  368,  369,  592. 

perpetual  rents,  370,  589. 

long  leases,  371. 

taking,  by  unreasonable  regulation  of  charges,  380. 


cZ 


804  ^^^^^^- 

[references  are  to  sections.] 

PBOPERTY — continued. 

qualified  property,  in  general,  402. 

qualified  property  of  riparian  owner,  deprivation  of  without  compensa- 
tion, 404-409. 

flooding  property,  as  taking,  409,  410. 

flooding  by  mill  dams,  or  other  means,  and  compensation  for,  410-413. 

in  streams  and  waters  needed  for  irrigation,  must  be  used  for  benefit 
of  public,  416,  417. 

fish  and  game  as,  418-420. 

restrictions  upon,  in  interest  of  adjacent  property,  424-427. 

dogs  as,  421. 

gas  and  natural  wealth,  422. 

power  of  majority  of  owners  to  bind  minority  in  creation  of  drainage 
district,  127,  441,  442. 

party  walls  and  division  fences,  443,  444, 

holding  of,  by  religious  society,  369,  466. 

taking  of,  for  public  use,  and  compensation,  504-506,  602. 

injury  to,  as  taking,  and  comi)onsation,  507-510. 

consequential  damages  to,  509,  510. 

taking  of,  under  police  power,  in  general,  511-513. 

destruction  of,  as  nuisance,  520-522,  531. 

unlawfully  used,  and  forfeiture,  525-528,  627. 

destruction  of,  to  prevent  spread  of  fire,  534. 

destruction  of,  for  military  purposes,  535,  536. 

rendered  useless  by  change  of  legislative  policy,  538-541. 

practice  of  profession  as,  542,  544,  545,  683-685. 

confiscation    of,    l)y    requirement    of   unreasonable   improvements,    548, 
549,  618. 

confiscatiou  by  unreasonable  regulation  of  charges,  550. 

withdrawing  privilege  of  limited   liability   from  corporation   as  taking 
of  |>ro]»crty,  567. 

grant  of  use  of  public  property  if  acted  u\)nu  is  property  right,  576. 

grant  of  use  of  public  property  a  property  right  when  rights  have  be- 
come vested,  57H,  579. 

rovocjible  license  to  use  streets,  and  rights  acquired  thereunder,  582. 

abolition  of  feudal  tenures,  588. 

porpftiml  covenants,  or  restrictions  upon  use  of  hnid,  590. 

entails,  .Wl. 

Becularizatioii  <>f  <liiircli  property,  and  mortmain,  592-596. 

tniHts  for  charitable  uses,  597-601. 

Bummnry  of  princi[»Ies  regarding  property  under  police  power,  602. 

buHincKH  cHtablished  under  license  for  reasonable  duration   as,  580,  602, 
681. 

Hpncinl  InirdenH  upon,  in  pul)lic  interest,  as  taking,  612. 

mechanics'  licnH  iipon,  626,  n. 

rit'ht  of  alien   to  liold,  706,  707. 
PK(jrOHTIONAT?',NESS, 

of  mennd  to  end,  ju<li<i.il  contrcd  of,  63. 


INDEX.  H05 

[references  are  to  sections.] 

PROPORTIONATENES&— continued. 

in   municipal   ordinances,   measure   must   tend   to   remove   danger,    128, 
142,  148,  736-738. 

in  health  and  safety  legislation,  149,  150. 
PROPRIETAEY   CAPACITY   OF   STATE.     See   Corporate   Powers  of 

State. 
PROPRIETARY  MEDICINES, 

sale  of,  cannot  be  given  to  druggists  exclusively,  149,  650. 
PROSTITUTES.     See  III  Fame,  Houses  of,  Prostitution. 

commitment  of,  98,  99. 

treatment  of,  as  vagrants,  97,  98,  244. 

state  and  local  power  over,  157. 

confinement  of,  to  specified  districts  of  city,  179,  244,  245,  689. 

registration  and  inspection  of,  in  France,  243. 

prohibition  and  regulation  in  United  States,  244. 

advertising  by,  246. 

persons  other  than  relatives  cannot  be  forbidden  to  speak  to,  on  street, 
457. 
PROSTITUTION.     See  Prostitutes. 

ill  fame,  houses  of,  basis  of  regulation  of,  242. 

regulation  or  prohibition  of,  243-246. 

as  a  crime,  245,  722. 

practices  in  aid  of,  246. 
PUBLICATIONS.    See  Speech  and  Press,  Freedom  of. 

obscene  and  criminal,  236,  237,  248. 

libelous,  472-475. 

inciting  to  crime,  477,  478. 

attacking  government,  475,  478. 
PUBLIC  BUILDINGS, 

regulation  of  use  of,  171. 
PUBLICITY, 

regulation  to  secure,  35. 
PUBLIC  FUNDS, 

expenditure  in  promotion  of  art  and  science,  23. 
PUBLIC  HOUSE  TRUSTS.    See  Gotenburg  System. 

PUBLIC  INTEREST,  BUSINESS  AFFECTED  WITH.  See  Rates  and 
Charges,  Railroads  and  Common  Carriers,  Banking,  Insurance, 
Grain  Elevators. 

statement  of  doctrine,  372, 

forms  of,  and  methods  of  control,  373. 

regulation  of  rates  and  charges  of,  374-385,  554. 

reasonableness  of  rates  determined,  379-385. 

requirement  of  equal  service  in,  386-394. 

special  requirements  in  interest  of  public  convenience,  395-398. 

regulation  of  banking  and  insurance,  399-401. 

breach  of  labor  contract  in,  452. 

extension  of  common  law  liability  in,  621. 

requirement  of  equal  service  to  whites  and  negroes,  693-695,  699. 


806  ^^^^^^^- 

[references  are  to  sections.] 

PUBLIC  MEETINGS.    See  Assembly   Eight  of. 

police  control  of,  174,  468,  480. 
PUBLIC  PLACES.     See  Streets. 
PUBLIC  MONOPOLY.     See  Monopoly. 

of  liquor  traffic,  218,  219. 

post  office,  666. 

municipal  monopoly,  667. 
PITBLIC  MORALS, 

iu  general,  187. 
PUBLIC  PURPOSE, 

in  taxation,  23. 

exercise  of  eminent  domain,  181. 

as  justifying  mill  dam  privileges  to  manufacturing  establishments,  412. 

as  justifying  flooding  of  land  in  other  ways,  413. 
PUBLIC  SCHOOLS, 

reading  of  Bible  in  and  religious  liberty,  463. 

non-attendance  of  children  on  catholic  holidays,  469. 

separation  of  races  in,  698,  700. 

right  to  attend,  conditioned  on  vaccination,  447. 
PITiLIC  WELFARE, 

restraint  of  individual  action  under  police  power  to  secure,  8. 

PURSUIT  OF  LIVELIHOOD, 

principle  of  freedom  of,  and  its  limitations,  492-497. 
QUALIFIED  PROPERTY.     See  Fish  and  Game,  Dogs,  Gas,  Navigable 

Watkiis,   Riparian  Owners,  Water  and  Water  Courses. 
glWH.WTINE.    See  Contagious  and  Epidemic  Diseases. 

state  power,  71,  80,  136,  488. 

by  state  against  infected  animals,  77,  82,  129,  136,  138. 

<liBcrimination  by  state  in,  82,  138-130. 

Htate  and  federal,  123. 

state  quarantine  where  directly  affecting  commerce,  138,  139. 

detention  of  person  by,  446. 

vchhoIh  examined,  required  1o  pay  for  examination,  622. 

state  quarantine  and  immigration,  705. 
RACE.    See  Neguoks,  Chinese. 

infhience  upon  r.|ii;ilit_y,  (ioi'.. 

constitutional  protection  of  negroes,  692. 

fcrleral  livil  riglila  legislation,  693. 

state  civil  rigiits  legislation,  ()94. 

compulsory  He|)aratioii  <.!'  blacks  :iihI  whites,  696. 

Hcpnrution  of  races  in  schools,  698. 

ttcparation  of,  in  public  ronveyances,  699. 

Hcparation  of  races,  and  c(|uality,  7<l(). 
RACK  COl'RSES.     See  IIousK  RACES. 

betting  on,   19t,   lOH,  7.10. 

fliwriniitiatinii    in    fiivor   nf   <>xisting,    by   oxempfiim    frntn    new    regula* 
tions,  687. 


INDEX.  gQj 

[references  are  to  sections.] 

EAILKOAD  CROSSINGS.    See  Grade  Crossings. 
precautions  requiretl  at,  116. 
requirements  at,  reasonableness  of,  612. 
railroad  required  to  keep  in  safe  condition,  631. 
grade  crossings,  abolition  of,  548,  556,  631. 
RAILEOADS   AND    COMMON    CARRIERS.      See    Rates    and    Charges, 
Public  Interest,  Business  Affected  With. 
valid  state  regulation  as  to  companies  engaged  in  interstate  commerce 
73,  80.  ,  ' 

requirement  to  stop  at  all  stations  or  at  county  seats,  73,  397. 

freight  trains  may  be  forbidden  to  run  on  Sunday,  73. 

state  regulation  of  rates,  73,  376,  571. 

state  laws  requiring  safety  appliances,  80,  723. 

regulation  of  railroad  crossings,  116,  612. 

regulation  as  to  qualifications  of  employes,  73,  116. 

liability  for  injury  to  passengers  or  damage  to  property,  79,  628-630. 

state  safety  regulation  aflPecting  interstate  trains,  135. 

ordinance  requiring  flagmen  at  every  crossing,  150. 

sale  of  tickets  by  unauthorized  parties,  60,  61,  291,  298,  673, 

hours  of  labor  of  employes  operating  trains,  316. 

abandonment  of  trains  by  employees  in  case  of  strike,  333,  452. 

pooling,  by  interstate  railroads,  341. 

reasonableness  of  rates,  379-385. 

discriminations  in  rates  by,  as  to  long  and  short  hauls,  and  size  of  ship- 
ments, 390-392. 

classification  of  traffic  for  fixing  of  rates,  393. 

mileage  tickets,  393,  397. 

sleeping  car  accommodations  a  matter  of  special  contract,  395. 

establishment,  maintenance,  or  discontinuance  of  depots,  395. 

equal  access  in  depot  to  all  owners  of  cabs,  soliciting  passengers,  396. 

requirement  of  track  connections  and  connecting  business    397.  ' 

construction  of  railroad  dependent  upon  administrative  determination 
as  to  its  necessity,  401,  659. 

legislation  as  to  organization  and  capitalization  of  railroad  companies 
400,  401.  '■  ' 

grade  crossings,  548,  556,  631. 

determination  of  rates  by  state  and  interstate  traffic,  551. 
equal  protection  of  laws  and  unreasonable  regulation  of  rates  of    611 
may  be  required  to  bear  expense  of  railroads  commissions,  622. 
legislation  requiring  fencing  of  tracks,  629,  637. 
liability  of,  for  fires  caused  by  sparks  from  locomotive,  630,  727. 
liability  for  injury  to  passengers,  632. 
absolute  liability  for  injury,  633,  634. 
liability  for  bringing  diseased  cattle  into  state,  634. 
penal  liability  for  injury,  when  not  caused  by  negligence,  637. 
discrimination  against,  in  recovery  of  claims,  637,  714,  727    735. 
discrimination  by,  based  on  local  conditions,  690. 
requirement  of  separate  coaches  for  blacks  and  white,  73,  695,  699. 


[references  are  to  sections.] 

KAILROADS  AND  COMMON    CAEEIERS— continued. 

interstate,  doing  business  in  state  where  not  incorporated,  719. 

distinction  between  long  and  short  hauls  in  regulations  to  prevent  acci- 
dents, 727. 
RATES  AND  CHARGES.     See  Railroads,  Public  Interest,  Business 
Affected  With. 

public  notice  as  to  railroad  rates,  41. 

legislative  regulation  must  be  reasonable,  63,  550. 

state  regulation  of,  and  interstate  traffic,  73,  79,  551. 

legislative  determination  of  rates  of  interest,  302-304,  733. 

charter  right  to  fix,  and  state  regulation,  363. 

English  and  American  legislation  regulating,  in  business  affijcted  with 
public  interest,  374,  375. 

where  business  a  monopoly,  376,  377. 

reasonableness,  legislative  or  judicial  determination  of,  379-386. 

where  business  not  monopolistic,  378. 

fixing  of,  a  legislative  function,  384,  385. 

taking  of  property  by  unreasonable  regulation  of,  380. 

(lifticulty  of  determining  what  charge  is  reasonable,  384. 

judicial  regulation   of,  385. 

conclusive  determination  by  administrative  boards,  386. 

discrimination  in,  by  railroad  companies,  390-392. 

requirement  of  sale  of  railroad  mileage  tickets  at  certain  price,  393. 

regulation  of,  for  services  incidental  to  business,  394. 

bases  for  determining  reasonableness  of,  552-554. 

legislation  changing,  and  existing  contracts,  555. 

determination  of,  in  corporate  charter,  as  contracts,  570-572. 

depriv:iti()ii  of  equal  ])rotection  of  laws  and  unreasonable  regulation  of, 
till. 
REAHO.NAHLENESS.    See  Judicial  Control. 

pritifijiie  of,  (53. 

in  municijial  ordinances,  33,  142,  150,  158,  286,  292. 

in  legislative  nieaHures,  15(1,   151,  158. 

of  regulation  of  offensive  establishments,  177,  178. 

in  rcHtrietive  legislation  regarding  children,  259.  ' 

in  limitation  of  hours  of  labor,  313,  317. 

in  regulation  of  payment  of  wages,  321. 

logiKlative  and  jndicijil  control  as  to  charges  by  business  affecteil  with 
imbli.-  iiitorest,  379-385. 

attitude  of  federal  court  as  to,  in  state  r(>gulatioii  of  cli.irgcs,  382, 

of  improvemenis  re(|uired  to  be  made  to  property,  549,  618. 

of  rales  fixed  by  legislature,  550, 

bases  for  determining,  as  to  rates,  552-554. 

of  r.'ifes  of  corpor.'itions,  .'572. 
REHATES, 

by  manufacturer  to  ono  handling  his  goods  only,  346. 
RECCKSMZANCE. 

to  keejp  the  peace,  SO. 


INDEX.  y09 

[references  are  to  sections.] 

REFOEM  SCHOOL  OR  INSTITUTION.     See  Parent  and  Child. 

commitment  of  children  to,  260-262. 

judicial  control  of  discharge  from,  263. 
REGULATION, 

distinguished  from  restraint  and  prohibition,  28. 

in  general,   35-40. 

to  secure  publicity,  35. 

includes  partial  'prohibition,  58. 

of  use  of  streets,  165-169,  172-174. 

of  places  of  public  resort  and  meetings,  175. 

of  sale  of  liquors,  in  general,  206-212. 

principles  governing  prohibition  and,  285.         .  » 

prejudicial  regulation  of  property  and  compensation,  512-517. 
REGKATING, 

English  legislation  against,  338. 
REGISTRATION, 

as  means  of  control,  42. 

of  strangers  in  United  States  and  Europe,  45. 

objections  to  registration,  46,  note  12= 

of  sales  of  weapons  and  poisons,  43,  93. 
RELIGIOUS   MEETINGS, 

protection  of,  175,  464. 

RELIGION.     See  Mortmain,  Public  Schools. 

freedom  of,  and  state  control  of  education,  266. 

holdings  of  property  by  religious  societies,  369,  466. 

constitutional  guaranty  of  freedom  of,  458. 

sectarian  legislation,  and  state  support  of  church,  459,  460. 

religious  disqualifications,  461. 

state  recognition  of,  462. 

reading  of  Bible  in  public  schools  and  freedom  of,  463. 

protection  of  religious  meetings,  464. 

blasphemy,  465. 

organization  of  religious  societies,  466. 

limits  of  religious  freedom,  467,  468. 

faith  cure,  and  compulsory  medical  treatment,  144n.,  447,  468. 

conflict  of  civic  and  religious  duties,  469. 

REMEDY.    See  Proportionateness  of  Means  to  End. 

RENDERING  ESTABLISHMENTS.     See  Offensive  Trades  and  Estab- 
lishments. 

RENTS, 

prohibition  of  perpetual,  370,  371.     . 
commutation  of  existing  perpetual  rents,  589. 

REPORTS.    See  Incriminating  Reports. 
in  general,  42. 
as  applied  to  business,  43,   93. 

requirement  of  license  and  constiutional  protection  against  self-crim- 
ination, 55. 


810  INDEX. 

[references  are  to  sections.] 

KEPUTATIOX, 

bad  reputation  not  a  punishable  offense,  94-96. 
RESTRAINT  OF  TRADE.    See  Combinations  in  Restraint  of  Trade. 
RESTRAINT, 

in  general,  22. 

defined  and  discussed,  28-30. 

whether   constitutional   where   criminality   in   each   case   left   to   deter- 
mination of  jury,  28. 
RETROACTIVE  LEGISLATION, 

and  property  acquired  under  previous  legislation,  538,  540,  545,  683-687. 

regulation  of  professions  and,  542,  544,  545,  683-685. 
•       affecting  contracts,  555. 

protecting  debtors,  557. 

federal  laws  regarding  legal  tender,  558. 

liquor  legislation  affecting  existing  conditions,  683. 

establishment   of  fire  limits,   not   retroactive,  685. 
RIOTS  AND  UNLAWFUL  ASSEMBLIES, 

powers  of  summary  repression,  88. 

killing  in  suppression  of,  445,  n.  1. 

officer  may  require  assistance  of  anyone  at  hand  in  repressing,  614. 

destruction  of  liquor  in  apprehension  of,  537. 
RIPARIAN  OWNER.    See  Navigable  Waters. 

compulsory  association  of  owners  to  prevent  inundation,  114,  442,  619. 

duty  of  owner  to  build  or  preserve  embankments,  114,  409,  619. 

title  of  owner,  extent  of,  403. 

owner's  easement  of  access  to  navigable  stream,  408. 

owner's  easement  subordinate  to  public  right  of  navigation,  408,  509. 

may  be  forbidden  to  weaken  his  land  to  injury  of  other  property,  619. 
HIVHHS.     See  Waters  and  Watiok  Courses,  Navkjable  Waters. 
SAFETY, 

growth  of  safety  legislation.  111. 

principal   subjects  of  legislation,    113-121. 

legislation   for,  and  Fourteenth  Amendment,  134. 

leffiHlatioii  affecting  commerce,  135-139. 

local  powers,  140-142. 

qiieHtioriH  involved  in  safely  legislation,  143-155. 

labor  legislation  for,  310. 

dlHi-rimination   in  safety  legislation,  727. 
KAII-OKS.     Sc..  Rkamkn. 
.SALOO.NS.     Scf  LiyuoRS. 

regulations  as  to  internal  .iriJingements,  52. 

women  as  wnitroHSCH,  or  frequenting,  244,  703. 

wine  rooms,  2M. 

(lc<-iHi(iti    by    jieople   of    lucnlity   concerned   as   to    whether   one   shall   be 
pftfablisheij,  645. 

ngulnfionH  api>lying  to  existing,  683, 
HAI/ri'KTHK, 

prerogative  to  dig  for,  .'illt,  rjSG, 


INDEX.  y^l 

[references  are  to  sections.] 

SCALPERS,  TICKET.     See  Ticket  Brokerage. 

business  prohibited,  61,  291. 
SCHOOLS.    See  Public  Schools,  Education. 
SCIENCE,  FREEDOM  OF. 

maintenanee  of,  necessary,  15. 

and  legislation  regarding  practice  of  medicine,  152-154 
and  offensive  publications,  237-239,  479. 
SEAMEN, 

federal  control  over  contracts  of,  329,  451. 
tax  upon,  for  support  of  Marine  Hospital,  434. 
SECOND  HAND  ARTICLES, 

regulation  of  sale  of,  93,  130. 
SECRET  SOCIETIES, 

legislation  regarding,  481,  482. 
SECURITY  OF  GOOD  BEHAVIOR, 
in  case  of  threatened  crime,  89. 
of  one  guilty  of  breach  of  peace,  109. 
SECURITY  OF  THE  PEACE, 

in  case  of  threatened  breach,  89. 
SECURITY  HOLDING  CORPORATION, 

whether  form  of  monopoly,  351. 
SEDITION  AND  SEDITIOUS  LIBEL.    See  Libel. 
SERVANTS, 

enticing  from  masters,  illegality  of,  333. 
indentured  servants  in  American  colonies,  450  n.  18. 
SERVITUDES.     See  Easements. 
SEXUAL  VICE, 

in  general,  234. 
SHEEP  GRAZING, 

forbidden  within  two  miles  of  dwellings,  171. 
SHERMAN  ANTI-TRUST  ACT, 

forbidding  combinations  in  restraint  of  trade  and  commerce,  341. 
interpretation  of,  354,  355. 

SHIPPING.    See  Vessels  and  Navigation. 

SIC  UTERE  TUO  UT  ALIENUM  NON  LAEDAS, 

principle  and  its  application,  8,  406,  439. 
SIDETRACKS, 

of  railroads,  for  use  of  factories,  &c.,  162,  n ;  427  n.  35 
SIDEWALKS, 

obstruction  of,  169. 

removal  of  snow  and  ice  from,  by  abutting  owner,  620. 

building  and  keeping  in  repair  by  abutting  owner,  620  and  n, 
SIGNS  AND  STAMPS, 

to  indicate  ingredients  of  articles  to  be  sold,  41. 

SLAUGHTER  HOUSES.    See  Ofb'Ensive  Trades  and  Establishments. 
municipal  power  over,  129,  177. 
mumcipal  power  in  location  of  within  city,  141,  179,  640. 


812 


INDEX. 


[references  are  to  sections.] 


SLAUGHTER  HOUSES— continued. 

prohibition  of,  within  city,  565,  640. 

slaughter  house  cases,  609,  669. 

license  to  erect  dependent  upon  administrative  discretion,  643. 

municipal  monopoly  of,  667. 

grant  of  monopoly  to  private  corporation,  as  means  of  police  control, 
669,  671. 

revocability  of  monopoly,  679,  680. 

prohibition  of  future  erection  of,  as  discrimination  in  favor  of  existing 
establishments,  687. 
SLAVERY, 

abolition  of,  question  of  compensation,  584-586. 
SMOKE  ORDINANCES, 

reasonableness  of,  177. 
SNOW, 

removal  of  from  roofs  of  houses,  616. 

removal  of  from  sidewalks,  620. 
SOCIAL  CONTROL, 

right  of  association  for,  484. 

SOLICITING, 

onlcra  by  personal  calls,  288. 

SPECIE  CONTRACTS.    See  Contracts. 

enforcement  of,  559. 
SPECULATION.    See  Options  and  Futures,  Gambling. 

prohibition  of,  how  far  constitutional,  59. 

options  and  futures,  200,  201. 

legitimate,  199,  202. 

foreign  legislation  concerning,  203. 

SPEECH  AND  PRESS,  FREEDOM  OF.    See  Publications 
development  of,  and  constitutional  guaranty,  471. 
and  law  of  libel,  472-475. 

and  attacks  u])on  government,  477,  47.S  aiul  ii. 
does  not  extend  to  incitement  to  crime,  476,  477. 
and  scientific  i)ublicationB,  479. 

SPITTING, 

in    public    conveyance^,     whether    within    .)urisdictiou    of    board    of 
hciiMh,  U7. 
SPENDTIIHIITH, 

may  bo  doi»rivod  nt'  tiintiM^i'tncnt  nt'  tli<'ir  property,  431. 
STAGE  CKNSOHSHII', 

Kuropc.'in  nnd    American   regulations,  251. 
HF'OKTS. 

dnngeroiiH  Hportn,  120. 

brntal  Hfiortn,  24M. 

STAK  rilA.MI'.Kk. 

court  of,  referred  to,  171,  4H1. 


INDEX.  813 

[references  are  to  sections.] 

STATISTICS  AND  STATISTICAL  INFORMATION, 

requirement  of,  44. 

ministers  required   to   report  marriages,  physicians  required  to   report 
births  and  deaths,  613. 
STATUTORY  OFFENSES, 

knowledge  presumed,  and  wrongful  intent  dispensed  with,  635,  636. 
STEAM  ENGINE.     See  Engineer. 

license  required  of  engineers,  493. 

revocation  of  permit  to  keep,  by  administrative  officer,  643. 

boiler  inspection,   exemption   of   locomotives,   727. 
STOCK  EXCHANGES, 

legitimacy  of  business  in,  59,  202. 

foreign  regulation  of,  203. 
STOCK  YARDS, 

as  places  affected  with  public  interest,  390. 
STORE  ORDER  ACTS.     See  Truck  System. 
STREET  RAILWAY.    See  Rates  and  Charges,  Streets. 

restriction  of  number  of  passengers  to  a  car,  175. 

may  be  required  to  keep  part  of  street  occupied  by  it  clean  and  free 
of  dust,  612,  620. 

cannot  be  forced  to  carry  policemen  without  pay,  613. 

municipal  power  to  grant  franchise  to,  163,  658. 

a  monopoly  of  necessity,  658. 

franchise  under  special  legislation,  660. 

permission  to  operate  does  not  exclude  similar  grant  to  others,  675. 

exclusive  track  rights  granted  by  city,  strictly  construed,  678. 
STREETS, 

use  of,  by  private  vehicles  a  right,  38,  168. 

municipal  power  over,  160-164. 

control  of,  when  fee  remains  in  adjoining  owner,  160. 

encroachments  on,  161-163. 

common  use  of,  right  to,  165,  167-169.    . 

right  of  city  to  vacate  street,  166. 

freedom  from  obstruction,  168,  169. 

preservation  of  order  on,  169. 

special  uses  of,  by  abutters,  172. 

use  of,  for  business  purposes,  license  for,  173. 

parades,  processions  and  meetings  upon,  174,  468,  480,  643,  644,  729. 

names,  affixed  to  private  houses,  519. 

license  to  use,  for  term  of  years  as  contract,  574,  576. 

exclusive  grant  of  use  of,  577. 

revocable  license  for  use  of,  582. 

removal  of  snow  from  sidewalks  by  abutting  owner,  620. 

railroad  required  to  improve  crossing  for  new  street,  631. 
STRIKES, 

legality  of,  332. 

illegal  acts  accompanying,  333,  334,  336. 

constitutional  power  over,  335. 


Q-^^  INDEX. 

[references  are  to  sections.] 

STRIKES — continued. 

may  they  be  forbidden  because  source  of  disorder?  336,  337. 
and  trusts,  337. 

and  interference  witli  interstate  trains,  341,  356. 
SUBCOXTKACTOR'S   LIENS, 

how  far  owner  can  be  made  liable,  626  n. 
SUMPTUARY  LAWS, 

history  uf,  430. 
SUNDAY, 

freight  trains  may  be  forbidden  to  run  on,  73,  80,  159 

state  regulations  for  observance  of,  184-186. 

laws  and  religious  liberty,  470. 

prohibition  of  work  by  barbers  on,   735. 
SUSPECTS  OR  SUSPICIOUS  CHARACTERS, 

duties  of  police  officers  regarding,  86. 

treated  as  criminals,  95. 

detention  of,  on  charge  of  vagrancy,  100. 

photographing  and  measuring,  103. 
SUSPENSION  OF  SENTENCE. 

of  convicted  persons,  as  means  of  control,  108. 
SUSPICION.    See  Suspects. 

as  evidence  of  crime,  95. 

cannot  be  basis  of  jiunisliment  without  some  specific  offense,  95,  96. 
SUPPRESSION.     See  Pkohibition. 
TARIFFS,  PROTECTIVE, 

against  foreign  competition,  12,  428. 

and  commerce  clause,  65. 
TAXATION, 

of  commerce,  70,  73,  74,  295. 

exemption  from,  as  contract,  363,  561,  568. 

(•x<'m|itioii  of  certain   industries  from,   forbidden,  428. 

exemption  of  property  of  religious  societies  from,  464. 
TAXINC  POWKR.    See  License  or  Occupation  Tax. 

for  revenue  purposes,  4. 

p\ib!ic   jiurpoHe,   23. 

an  power  of  restraint  or  encouragement,  25. 

Mid  the  commerce  clause,  70. 
TELKCKAI'H  AND  TELKPIIONE, 

regulation  of  rates,  '.\7(). 

legihlation  against  discriiniiiiiliori  in   i;itrs,  .'iiHI. 

arrangements  between   r(iiii|i.ini(s    tor   transmission   of  messages,   must 
bo  matter  of  8j)ecial  contract,  395. 

other   regulations,   39S. 

niilil.irv  tele^mph  linoH,  control  of,  in   tin f  \v;ir,  471,  note. 

telegraph  (-ompanies  ;nilliorizcd  to  cstablisli  lines  ,ilong  post  roads,  719. 
TENEMK.VT  HOUSES, 

fire  CHI  apes  in,  34. 

requirement  that  goods  be  marked  "tenement  made,"  51. 


INDEX. 


815 


[references  are  to  sections.] 

TENEMENT  HOUSES— continued. 

regulation  of,  in  interest  of  health,  128,  542. 

unwholesome  businesses  in,  151. 

destruction  of,  as  sanitary  measure,  520. 

regulation  of,  and  retroactive  legislation,  538. 
TERRITOEIAL  SOVEREIGNTY, 

as  sustaining  power  to  exclude  foreign-built  and  foreign-owned  vessels 
65.  ' 

TERRITORIES, 

federal  police  power  in,  67. 
THEATRES, 

requirements  in,  for  safety  and  comfort,  175,  251. 

control  over  by  censorship,  251. 

American  theatre  regulations,  251. 

employment  of  children  as  actors  may  be  forbidden,  259. 
THREATS, 

to  commit  crime,  security  of  peace,  89. 

in  case  of  strikes,  333,  334,  336. 
TICKET    BROKERAGE, 

prohibition   of,   61,   291. 

regulation   of,   291. 

regulation  of,  and  interstate  commerce,  295. 

law  confining  business  to  railroad  appointees,  invalid,  673. 
TOLERATION, 

religious,   459,   465. 

political,  475,  and  see  libels,   and  anarchism. 
TORRENS  REGISTRATION  LAW, 

constitutionality  of,  437. 

TRADES  AND  OCCUPATIONS.     See  Professions,  Architects,  Drug- 
gists,  Auction   Sales,   Barbers,   Peddlers,    Plumbers. 

legislation  giving  associations  power  of  admitting  to,  56,  647. 

legislation  controlling  certain,  in  interests  of  health,  130,  131. 

regulation  of,  492-494,  639. 

state  certification  as  means  of  control,  495. 

qualifications  to  pursue,  and  rules  framed  by  administrative  body,  649. 

requirement  of  good  character  in  order  to  engage  in  certain,  651. 

restriction  to  citizens,  706. 
TRADE  MARKS, 

common  law  protection  of,  664. 
TRADE  SECRETS, 

revealing  of,  as  form  of  unfair  competition,  288  n. 
TRADE  UNIONS.    See  Conspiracy,  Law  of  ;  Strikes. 

coercion  by  employer  against  membership  in,  326,  735. 

and  combinations  of  employers,  326. 

earlier  legislation  and  decisions,  330,  331. 

strikes,  332,  335,  336. 

illegal  methods  in  strikes,  333,  334. 


816  i^'^^^- 

[references  are  to  sections.] 

<» 

TRADE    rXIOXS — continued. 

influeneing  other  employes  to  join,  and  coercion,  333,  334. 

and  trusts,  337,  356. 
TRADING  STAMPS, 

legislation  forbidding  use  of,  60,  293. 

whether  of  nature  of  lottery,  198,  293. 
TRAMPS, 

defined  so  as  to  include  males  only,  702. 
TRESPASS, 

entry  for  public  purposes  not,   518. 

on  wild  land  allowed,  under  what  circumstances,  518. 
TRUCK  SYSTEM.     See  Wages. 

legislation  to  force  payment  of  wages  in  cash,  319-321. 

discrimination   against   certain   businesses   in   legislation   against,    320, 
321,  735. 
TRUSTS.     See  Combinations  in  Restraint  op  Trade,   Monopoly,  (;on- 
SPIRACY,  Law  of. 

and    labor   organizations,   discrimination   between,    in    legislation,    337, 

356. 

state  legislation   against,  339,  340. 

federal  legislation,  341. 

state  and  federal  power  as  to  corporations  doing  interstate  business, 
342. 

common   law  rules  and  their  applicntion   against,  343-353. 

trust   organization,   350. 

present  organization  of,  351,  352. 

interpretation  of  anti-trust  acts,  354. 

conHtitutionality  of  anti-trust  legislation,  355. 

laws  against,  and  exception  of  agricultural  products,  356,  734. 
TRUSTS,   ELEEMOSYNARY, 

Dartmouth  College  doctrine,  597. 

where  use  to  whi<'h  property  devoted   is   impracticable,   or  contrary  to 
public  poli.y.  59K,  (iOO,  602. 

rcHcrved  power  over  charter  of  corporation,  cannot  destroy  purpose  for 
which  created,  if  legal,  599,  ()02. 

l-'tigiish    IcgiHiation    iir   to   trusts   wliicti    hnvc   liecnmo   useless   or   harm- 
ful, 601. 

PruHHian  laws  as  to  trusts,  601   n. 
TUNNELS, 

right  to  maintain  yrsiiitcd  siitijcr-t  to  rtvuiircrnciits  of  navigation,  576. 

UNK.MK  coMi'K'rrriox, 

what  Ih,  288,  note    11. 
UNION  LAMOR, 

rf<|iiircd  for  work  innlcr  city  <(mtr:icts,  673,  n.  43. 
UM.AWITI,  ASSKMMI.V.     Sec  AKStCMBl.Y. 
UNHHilill.lNKSH, 

pf.licc  regulation  of,   180-183. 

of  iidvertiHementH,    182. 


INDEX.  817 

[references  are  to  sections.] 

UNWHOLf:SOME    OCCUPATIONS, 

in  tenenient  houses,  128,  151. 

as  nuisances,  176. 

confinement  to  specified  districts,  179. 
USEFUL  BUSINESS, 

cannot  be  entirely  forbidden,  59,  62,  401. 
USURY.     See  Interest. 

history  of  legislation,  302. 

American   legislation,   303. 

constitutionality   of   legislation,    304. 

exceptions   in   laws,  in  favor  of  pawnbrokers,  and  building  and  loan 
associations,  733. 
VACATION, 

of  streets,  166. 
VACCINATION, 

compulsory  vaccination,  144  n.,  447. 

VAGRANCY, 

discussed,  97-100. 

definition  of,  97. 

as  criminal  offense,  99. 

detention  for,  as  means  of  dealing  with  suspects,  100. 

prostitution  as,  97,  98,  244. 

living  upon  earnings  of  prostitutes  as,  246. 

punishment  of  vagrant  for  leaving  county  of  residence,  491. 

VAULT, 

under  sidewalk  not  a  nuisance  per  se,  162. 

VEHICLES, 

license  of,  as  a  police  measure,  168. 
stopping  of,  and  obstruction,  169. 

VESSELS, 

registry,  65. 

built  abroad  and  owned  by  non  residents,  65. 
regulations  to  prevent  collisions  at  sea,  117. 

forfeiture  of,  when  engaged  in  unlawful  oyster  fishing,  525,  527. 
federal  license  of  officers,  and  liability  of  owners  of,  for  their  actions, 
624,   625. 

VESTED  RIGHTS.     See  Property. 

property  rendered  useless  by  change  of  legislative  policy,  539-541. 

repeal  or  change  of  charter  under  which  acquired,  362,   363. 

in   a   profession,    or   occupation,    and    retroactive    legislation,    54^3-547, 

683-685. 
licenses  to  conduct  lotteries,  563. 
license  to  sell  liquors,  564. 

license  to  use  public  streets  or  property,  578,  579. 
economic  or  social  reforms  and,  in  general,  583-601. 
business  established  under  license  of  reasonable  duration  as,  580,  602, 
681. 

52 


gig  INDEX. 

[references  are  to  sections.] 

VINEGAB, 

coloring  of  distilled,  forbidden,  32. 
VIOLENCE.    See  Strikes,  Anarchism. 
VIVISECTION, 

regulation  of,  249,  479. 
VOTING, 

conditions  annexed  to,  14. 

laborers  given  time  to  vote,  314. 

coercion  by  employer  t'^  prevent  or  influence  vote  of  employee,  325. 

by  women,  701. 
WAGES.     See  Truck  System,  Strikes,  Conspiracy,  Law  of. 

rate  of,  318. 

payment  of,  at  stated  intervals,  319-321,  715,  735. 

accrued,  wages,  of  discharged  laborer,  to  be  paitl  without  abatement, 
319  n. 

truck  acts,  319-321,  502,  735. 

legislation  to  force  payment  in  cash,  319-321. 

combinations  to  raise,  early  law  regarding,  330,  331. 

recovery  of  attorney's  fee  in  action  for,  319  n.,  714,  735. 

assignment  of  future,  forbidden,  319  u. 

garnishment  of,  301  n. 
WAR, 

destruction  and  ;ii)jir(ipriiitioii  in  time  of,  536,  537. 

censorship  in  time  of,  471. 
WAHHIIOUSING.     See   Grain   Elevators,   Public   Interest,  Business 
Affected  With. 

requirement  of  service  without  discrimination,   390. 

reguhition  of,  297. 

warehousemen  not   allowed  to  store  their  own  grain,  297. 

rates  charged  in,  regidation  of,  376. 

re(|uirenient  of  service  without  discrimination,  390. 

niMiio|M)iy  to  licensed  wareliousenien,  uucoustitutiouul,  397  u. 
W  AH  KANT, 

re<|uirement  of,  for  nrrest,  87. 
WASTK, 

of  Tiafural   gas,  422. 

of  walir  in  arlcsinn  wells,  425. 
W.\TKU   A.\i)   WATKK  COURSES.     See  Navioable  Waters,   Riparian 

OWNKR.S. 

rifiarian  riglits,  4(13-409. 

mill  dam  privilegeH  :ind   Hooding  of  land   liy  dams,  410-412. 
flooding  land   by  other  uhch  of,  41.S. 
control  of  use,   for  mining  and  irrigation,  414-417. 
cntMng  of  ice  from  |iid)lic  waters,  417  n. 
natural  water,  and   neigldxir's  rights,  425. 
WATKR  HATKS, 

r.giilalion   of,   376,   571. 

determination  of,  an  contract   with  company,  571. 


INDEX.  819 

[references  are  to  sections.] 

WATER  WORKS.     See  Water  Rates. 

charter  to  company  to  erect,  and  competing  municipal  establishment, 
677,  678. 

exclusive  monopoly  to,  a  contract,  679,  680. 
WEAPONS.    See    Arms. 

report  or  register  of  sales,  by  dealer  in,  43,  93. 

constitutional  provisions  as  to  carrying,  90. 
WEEKLY  PAYMENT  ACTS.     See  Wages. 
WEIGHTS  AND  MEASURES, 

federal  power,  65,  273. 

federal  inaction  and  state  regulation,  273-275. 

official  inspection  of,  274. 
WHARFS,  PIERS  AND  DOCKS.     See  Navigable  Waters. 

state  and  local  power  over,  80. 

encroachments  upon  navigable  waters  by,  163. 

regulation  of  landing  vessels  at,  175. 

regulation  of  rates  of  wharfage,  373. 

when  buildt  by  riparian  owner,  he  cannot  be  deprived  of  them  without 
compensation,  406. 

right  of  riparian  owner  to  erect,  408. 
WINES, 

used  for  sacramental  purposes,  224, 

exception  in  favor  of  native  wines,  in  state  prohibition,  214,  215. 
WOMEN.    See  Women  and  Children. 

limitation  of  hours  of  labor,  311-314. 

prohibition  of  labor  in  mines,  258,  311. 

civil  and  political  rights  of,  701. 

right  to  practice  law  or  engage  in  other  employment,  702. 

employment  of,  in  liquor  business,  703. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  729  628 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


NOV 


27  1970 


DEC  10  1977 

AUG  181985 


Form  L9-Series  4939 


